Citation Nr: 21015777 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-07 833 DATE: March 18, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to an initial compensable disability rating for pseudofolliculitis barbae is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for left ear hearing loss have been met. 2. The evidence of record does not show the Veteran’s pseudofolliculitis barbae has manifested to at least 5 percent or more of the entire body, or at least 5 percent or more of exposed area affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. CONCLUSIONS OF LAW 1. Left ear hearing loss was incurred in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for an initial compensable disability rating for pseudofolliculitis barbae have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to May 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the electronic claims file. Upon remand, right ear hearing loss was granted service connection; this aspect of the appeal is no longer in appellate status. 1. Entitlement to service connection for left ear hearing loss The Veteran maintains that service connection is warranted for left ear hearing loss. In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Sensorineural hearing loss (organic diseases of the nervous system) are considered chronic diseases, and therefore will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of discharge from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the purpose of applying the laws administered by VA, impaired hearing is considered a “disability” when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In regard to element (1), current disability, post-service VA examination now indicates a diagnosis of left ear hearing loss. In regard to element (2), in-service incurrence, on entrance examination conducted in January 1974, the pure tone thresholds in the left ear at 500, 1000, 2000, and 4000 Hz were 5, 5, 5, and 5 decibels, respectively. On separation examination conducted in January 1976, the pure tone thresholds in the left ear at the same frequencies were 30, 15, 10, and 20 decibels, respectively. As noted, the Veteran contends he has current hearing loss is due to military service to include his job as communications equipment operator as well as exposure to military artillery fire. He is capable of describing and reporting his inservice noise exposure. In regard to element (3), causal relationship, the record contains an April 2019 VA medical opinion. The VA examiner found that there was a permanent positive threshold shift that was greater than normal. The audiologist explained that while there was a 30-decibel threshold at 500 Hz, on the separation examination, this does not qualify for VA adjudication purposes. Although this 30-decibal finding is not hearing loss for VA disability purposes, it is evidence of some level of reduced hearing acuity in service. The VA examiner misstates the requirement for service connection. As the record contains credible medical opinion showing reduced hearing acuity during military and resolving reasonable doubt in the Veteran’s favor, the Board finds that the third element is satisfied. As all three elements have been satisfied, the Board finds that service connection for left ear hearing loss is warranted. 2. Entitlement to an initial compensable disability rating for pseudofolliculitis barbae The Veteran’s service-connected pseudofolliculitis barbae has been rated by the RO under the provisions of Diagnostic Code 7813. This regulatory provision instructs that the disability is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); scars (Diagnostic Codes 7801-7805); or dermatitis (Diagnostic Code 7806), depending on the predominant disability. Under Diagnostic Code 7806, dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas; or requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period warrants a 60 percent rating. Dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating. Dermatitis or eczema affecting at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas; or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7806. With regards to scars, Diagnostic Codes 7801-7802 are not applicable insofar as they apply to scars not of the face, head, or neck. Scars of the face, head, or neck are rated under Diagnostic Code 7800. The criteria provide for a 10 percent evaluation when there is one characteristic of disfigurement. A 30 percent evaluation is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips; or when there are two or three characteristics of disfigurement. There are eight characteristics of disfigurement for purposes of evaluation under § 4.118, as follows: Scar 5 or more inches (in.) (13 or more centimeters (cm.)) in length; scar at least one-quarter in. (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square (sq.) in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding six sq. in. (39 sq. cm.); and, skin indurated and inflexible in an area exceeding six sq. in. (39 sq. cm.). Id. at Note (1). Note (5) provides that the characteristic(s) of disfigurement may be caused by one scar or by multiple scars and that the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. According to Diagnostic Code 7804, a 10 percent rating is assignable for one or two scars that are unstable or painful. A 20 percent rating is assignable for three or four scars that are unstable or painful. A 30 percent rating is assignable for five or more scars that are unstable and painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802 or 7805 may also receive an evaluation under this diagnostic code, when applicable. Diagnostic Code 7805 pertains to other scars (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802 and 7804. Any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code. The Veteran underwent a VA examination in May 2011. He reported his medical history. Currently he had intermittent flare ups dependent on the weather. The frequency is dependent on the weather During the winter he hardly had flareups but noted flareups with heat and warm weather. He used hydrocortisone cream 1% once a day which resolved over 2 weeks. He did not take any medication for his condition. He did not have steroid therapy, immunosuppressant therapy, light therapy, UVB, or PUVA therapy. There were no systemic symptoms, acne, or scars. It did affect his daily livings or occupationally. Upon examination, the examiner noted that the Veteran’s disability did not cause scarring or disfigurement. The Veteran did not have any benign or malignant neoplasms. He did not have any systemic manifestations (such as fever, weight loss, or hypoproteinemia). He had not treated the disability with oral or topical medications in the past 12 months. He had not had any episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. The disability did not impact the Veteran’s ability to work. The examiner noted that the disability affects the Veteran’s throat. Consequently, it affects less that 5 percent of the Veteran’s total body area and less than 5 percent of his exposed body area. VA outpatient treatment reports fail to reflect additional treatment for pseudofolliculitis barbae. Treatment reports dated in January 2016, April 2016, June 2016, July 2016, June 2017, August 2017 noted no skin rashes, inflammation, ulcers, subcutaneous nodules, or lesions. In order to warrant a compensable rating, the Veteran’s disability must be at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas; or require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. As noted above, the Veteran’s disability affects less than 5 percent of the total body and less than 5 percent of the exposed areas; and it is does not require intermittent systemic therapy. Moreover, the disability is not manifested by one characteristic of disfigurement (Diagnostic Code 7800); or two scars that are unstable or painful (Diagnostic Code 7804). Effective August 13, 2018, VA regulations provide a bright-line rule defining “topical therapy” as treatment administered through the skin and “systemic therapy” as treatment administered through any route other than the skin. 38 C.F.R. § 4.118 (a) (August 13, 2018). Under the old regulations, in Johnson v. Shulkin, the Federal Circuit Court distinguished between “systemic” therapy versus “topical” therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. 862 F.3d 1351 (Fed. Cir. 2017). In considering whether a treatment is systemic, the Board must also consider whether the treatment affects the body as a whole and whether the given treatment is like or similar to a corticosteroid or other immunosuppressive drug. In the present case, there is no competent and credible evidence of record indicating the Veteran’s disability was treated with systemic corticosteroid or other immunosuppressive drug. As the Veteran’s pseudofolliculitis barbae has not affected at least five percent of the exposed area or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, a compensable rating under DC 7806 is not warranted. As such, entitlement to a disability rating in excess of 0 percent is denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and depression. The Veteran maintains that he has a psychiatric disorder related to an event that occurred during military service. The Board finds that an additional opinion is necessary to ensure the duty to assist is satisfied and that all opinions are based on a full review of the record and consideration of the facts of the appeal. The matters are REMANDED for the following action: 1. Update VA treatment records. 2. Thereafter, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder to include adjustment disorder with mixed anxiety and depressed mood. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and detail which stressor(s) is the basis of the diagnosis. As to any other acquired psychiatric disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner is directed to comment on the findings of the Defense Personnel Records Information Retrieval System (DPRIS) in April 2011 regarding the contended in-service incident and all other evidence of record regarding the circumstances of service. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.