Citation Nr: 21008305 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 19-26 350 DATE: February 16, 2021 ORDER Entitlement to service connection for a skin disorder of the feet is granted. Entitlement to an increased evaluation for a bilateral hearing loss disability, currently rated as zero percent disabling before November 18, 2020 and as 30 percent disabling since then, is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current skin disorder of the feet had its initial onset during active duty service. 2. During an audiological examination of the Veteran in September 2018, the Veteran’s Maryland CNC speech discrimination scores were 90 percent in the right ear and 98 percent in the left ear; but the examiner was not able to obtain valid auditory threshold test results. 3. According to the records of an ENT specialist in private practice, the Veteran’s auditory threshold averages in July 2019 were 65 decibels in the right ear and 64 decibels in the left ear. 4. During audiological testing on November 18, 2020, the Veteran’s hearing acuity was level VII in the right ear and level VI in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder of the feet have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating hearing loss higher than zero percent before November 18, 2020 or higher than 30 percent since then for a service-connected hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1953 to February 1956. This case comes to the Board from a September 2018 decision of the Agency of Original Jurisdiction (AOJ). In May 2020, the Veteran testified before the undersigned at a Virtual Hearing. A transcript of that hearing is of record. The Board issued a decision and remand in June 2020, finding that the Veteran had submitted new and material evidence sufficient to reopen his claim for service connection for a skin disorder of the feet, previously denied in 1976. The Board remanded the reopened skin disorder claim and the claim for an increased rating for a service-connected hearing loss disability to the AOJ for further development. After arranging a new examination, the AOJ increased the rating assigned to hearing loss from zero percent to 30 percent, effective November 18, 2020. Because the Veteran has not expressed satisfaction with the amount of the increase, the hearing loss rating issue remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection for a Skin Disorder of the Feet Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). To support his claim, the Veteran has submitted records from a podiatrist in private practice, indicating a diagnosis of dermatophytosis of the toenail and nail dystrophy. A VA examination report indicates a diagnosis of dermatophytosis and tinea pedis. This evidence satisfies the current disability requirement of the claim. The service treatment records do not mention dermatophytosis, tinea pedis, or foot fungus. But they do refer to the removal of plantar warts. According to the Veteran, his fungal infection on the skin of his feet had its initial onset in service. The earliest medical evidence of dermatophytosis comes is a letter from a podiatrist in private practice, who examined the Veteran’s feet in December 1974. According to the letter, the examination revealed “a chronic form of Dermatophytosis and also deep hyperkeratotic, multiple, cystic-type of growths on the plantar surface of the heel and instep areas, bilaterally.” When the Board previously considered this issue in June 2020, the record included no podiatry records more recent that this letter and no diagnosis for any skin disorder more recent than 1975. The Board remanded the case to arrange a VA examination, which took place in November 2020. As noted, the examiner’s report describes a diagnosis of dermatophytosis and tinea pedis, indicating 1975 as the initial date of diagnosis. The report also discussed the plantar warts noted in the service treatment records, but, according to the examiner, the plantar warts had completely resolved. In the examiner’s opinion, it was less likely than not that the current dermatophytosis had its initial onset in service. To support her conclusion, the examiner emphasized that, “there is no evidence in [service treatment records] that a fungal infection existed in service.” The plantar warts noted in service, the examiner explained, are of viral origin, and do not cause fungal infection. Addressing the Veteran’s statements, the examiner wrote that his “account of fungal symptoms co-occurring with the plantar warts in service is not supported by [service treatment records]. Past private medical records [were] reviewed, however current exam is negative for chronic findings.” The examiner’s opinion is probably persuasive enough to foreclose the possibility that the Veteran’s current skin disorder is related to the plantar warts removed in service. But the opinion is not adequate to a Board decision rejecting the Veteran’s credible testimony about the timing of the onset of the fungal infection in service. Because they are symptoms observable to an ordinary layperson, the Veteran is competent to provide information about when he first observed skin discoloration and when he first experienced itching or irritation of the feet. Moreover, the examiner’s suggestion that “current exam is negative for chronic findings” is undermined by the diagnosis section of the August 2020 foot conditions examination questionnaire. Significantly, section 2A of the questionnaire identifies dermatophytosis and plantar warts, but the examiner’s response to section 2B (“Did the Veteran previously have a skin condition that is now completely resolved and no longer requires treatment of any type?”) lists only plantar warts and not dermatophytosis. If a skin disorder can begin, according to the examiner, in 1975 and still be unresolved 45 years later, it is properly understood as a chronic skin disorder. Because of these weaknesses in the November 2020 opinion, the Board has considered the possibility of remanding the case for further development. But “even if a medical opinion is inadequate to decide a claim, it does not follow that the opinion is entitled to absolutely no probative weight.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The Board finds that, when considered together with the Veteran’s statements the evidence is approximately evenly balanced as to whether dermatophytosis had its initial onset in service. The November 2020 examination report, identifying dermatophytosis with an initial date of diagnosis of 1975, carries the implication that dermatophytosis can last for decades, suggesting that the Veteran’s testimony about the onset of his skin disorder is plausible and consistent with the contemporary scientific understanding of his condition. It is true that the January 1956 separation examination report indicates that the Veteran’s feet were normal at the time of his discharge from active duty. If he were suggesting that the separation examination overlooked a very conspicuous or serious injury – a broken bone, for example – then the Board might reasonably take a skeptical view of his testimony. But in this case, he is merely suggesting that it is likely that the separation medical examiner overlooked some fungus on the skin beneath his toenails during the course of an examination intended to provide a general description of all the major systems of the body. Under these circumstances, the Veteran’s version of events is plausible. For these reasons, the Board finds that it is at least as likely as not that the current skin disorder of the feet had its initial onset in service. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’... , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Accordingly, the Board will grant service connection for a skin disorder of the feet. Increased Rating for Hearing Loss Disability evaluations are determined by evaluating the extent to which the claimant’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The method for rating a hearing loss disability depends in part on the results of the Maryland CNC speech recognition test, and in part on the results of the pure tone audiometric test at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 describes the sequence of steps that a VA adjudicator must use to apply the rating criteria for hearing loss disability. For the pure tone audiometric test, an average pure tone threshold is obtained by dividing the sum of these thresholds by four. After the average pure tone threshold is determined, Table VI of 38 C.F.R. § 4.85 is normally used to assign a Roman numeral hearing impairment designation based on a combination of the percent of speech discrimination and pure tone threshold average. After a Roman numeral hearing impairment designation has been assigned to each ear, Table VII of § 4.85 is used to assign the disability rating for bilateral hearing loss by combining the Roman numeral hearing impairment designations for both ears. Id. Under certain circumstances – “Exceptional Patterns of Hearing Loss” – it is appropriate to determine the Roman numeral hearing impairment designation either from Table VI or Table VIa, whichever results in the higher rating. One pattern in which it is appropriate to use Table VI or Table VIa is when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). When the Veteran filed his pending hearing loss claim, the AOJ arranged an audiology examination in September 2018. According to the examiner’s report, the pure tone audiometric test results were invalid. When valid results cannot be obtained, the examination report form asks the audiologist to explain why. In response, the September 2018 examiner suggested that the AOJ should use the Veteran’s Maryland CNC speech discrimination test results (90 percent in the right ear and 98 percent in the left ear). But 38 C.F.R. § 4.85 does not authorize this. If the examiner certifies that using the speech discrimination scores is inappropriate because of language difficulties or inconsistent scores, see 38 C.F.R. § 4.85(c), or if there are exceptional patterns of hearing impairment as defined by 38 C.F.R. § 4.86, then a rating may be assigned based on auditory threshold averages alone. But there is no similar formula for rating hearing loss disability based only on speech discrimination scores. The examiner also offered a further explanation for the invalidity of the September 2018 threshold test results which was difficult to understand because of the examiner’s use of several undefined abbreviations and technical terms. For these reasons, the September 2018 report was inadequate to decide the claim. In part because this case has been advanced on the Board’s docket because of the Veteran’s age, the Board considered the possibility of combining the apparently valid speech discrimination scores obtained by the September 2018 examiner with audiological findings from the records of the Veteran’s ear, nose, and throat specialist (ENT). Unfortunately, although one of these records indicated that a physician assistant reviewed an audiogram reflecting “moderate to profound sloping sensorineural hearing loss” the ENT records available in June 2020 did not specify the auditory thresholds, in decibels, at the relevant frequencies. For these reasons, the Board remanded the increased rating claim for a new examination and instructed the AOJ to write to the Veteran to invite him to provide copies of outstanding private treatment records, including the audiogram from his ENT specialist. The AOJ complied with the Board’s instructions by sending the Veteran an appropriate post-remand development letter in June 2020. In response, the Veteran submitted a group of records, which include a set of audiological test results dated July 2019. The auditory thresholds obtained by the ENT specialist are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 60 70 85 LEFT 55 50 55 70 80 The AOJ also scheduled a new VA audiological examination in November 2020. According to the examiner’s report, the Veteran’s auditory thresholds at that time were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 75 85 95 LEFT 60 60 70 75 90 Maryland CNC speech discrimination test results were 88 percent in the right ear and 82 percent in the left ear. As required by Martinak v. Nicholson, 21 Vet. App. 447 (2007), the November 2020 examiner elicited information from the Veteran about the functional effects of his hearing loss disability. The Veteran said that his hearing loss caused difficulty communicating, especially in groups and large gatherings. Because the auditory thresholds reported by the November 2020 examiner were 55 decibels or more at all the relevant frequencies, the results amount to an exceptional pattern of hearing loss for the purposes of 38 C.F.R. § 4.86(a). Thus, the Board will analyze these results using both Table VI and Table VIa, and apply whichever method results in the higher rating. Using Table VI, these findings indicate hearing acuity of Level III in the right ear and Level V in the left ear. According to Table VII, these designations indicate that a 10 percent disability rating would be appropriate. Table VIa, however, would assign a hearing acuity level of VII to the right ear and VI to the left ear. Combining these numerical values using Table VII, a 30 percent rating is appropriate. Consistent with this analysis, the AOJ increased the rating assigned to the Veteran’s hearing loss disability to 30 percent, effective the day of the VA examination. As suggested in its June 2020 remand, the Board has considered the possibility of assigning an earlier effective date to the increase based on the July 2019 audiogram submitted by the Veteran. Unfortunately, the July 2019 audiogram does not represent an exceptional pattern of hearing loss for the purposes of 38 C.F.R. § 4.86 because, according to the ENT records, the Veteran’s auditory thresholds at 1000 Hertz were below 55 decibels in both ears. Thus, the Board can only apply these results to Table VI. When combined with the Maryland CNC test scores obtained by the September 2018 VA examiner, these findings indicate hearing acuity of Level III in the right ear and Level II in the left ear. According to Table VII, these designations indicate that a zero percent disability rating would be appropriate. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for an increased rating. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The preponderance of the evidence is against a finding that his bilateral hearing loss disability met the criteria for a compensable rating required by 38 C.F.R. § 4.85 before November 18, 2020 or that his disability met the criteria for a rating higher than 30 percent at any time. Because the preponderance of the evidence is against the claim, the benefit-of-the-   doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the increased rating claim for hearing loss must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.