Citation Nr: 21026411 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 09-39 998 DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to an initial rating in excess of 10 percent for tinea versicolor is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the pendency of the appeal, the Veteran had bilateral hearing loss for VA purposes that was related to his conceded in-service noise exposure. 2. During the period on appeal, the Veteran's tinea versicolor affected 10 to 20 percent of his total body area and was treated with topical medication only. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.385. 2. The criteria for an initial rating in excess of 10 percent for tinea versicolor have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 1992 and from February 2003 to May 2004, including service in the Southwest Asia theater of operations during the Persian Gulf War. In a March 2019 Decision, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss and a right ankle disability. The March 2019 Decision also remanded the claims for an increased rating for tinea versicolor and entitlement to TDIU. In an August 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (the Court) vacated the March 2019 Board decision to the extent that it denied entitlement to service connection for bilateral hearing loss and a right ankle disability, and remanded the case to the Board for adjudication consistent with the terms of the August 2020 Court Memorandum Decision. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss that is related to hazardous noise exposure during active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In its February 2016 remand, the Board conceded the Veteran's in-service noise exposure. The Veteran's MOS of Abrams Tank System Mechanic, Combat Motor Transport Operator, as well as combat service in Southwest Asia and Iraq/Kuwait, were all highly probable for hazardous noise exposure. Accordingly, the requirement of an in-service incurrence is met. While there has been much dispute over whether the Veteran has a current diagnosis of hearing loss for VA purposes, the Board finds that the Veteran's current hearing loss, regardless of the severity, is related to his noise exposure during active service. Weighing in favor of this determination is the May 2017 examiner's opinion that the Veteran's documented hearing loss was at least as likely as not incurred in and/or caused by hazardous noise exposure in military service. The examiner reasoned that the observed threshold shift in the Veteran's hearing is found in association with acoustic trauma and he would have been exposed to noise levels adequate to cause changes to his auditory system while in the service. Additionally, the medical evidence of record includes private medical opinions from Dr. P.Y., dated in September 2010 and January 2012, that indicated the Veteran had 30 percent hearing loss bilaterally that was more likely than not related to in-service acoustic trauma. For the purpose of establishing a nexus between the Veteran's in-service noise exposure and his current hearing loss, the Board finds these opinions probative. The medical evidence of record also includes a June 2012 medical opinion, wherein the examiner concluded that the Veteran's bilateral hearing loss was not related to active service. Notably, the same examiner concluded that the Veteran had tinnitus that was related to active service; stating that the Veteran had been exposed to noise levels adequate enough to cause changes to his auditory system and acoustic trauma. The Board finds that this opinion is internally conflicting, and therefore, is of little probative value in determining the etiology of the Veteran's hearing loss. Additionally, a January 2015 examiner also opined that the Veteran's hearing loss was not related to active service. However, the examiner's opinion was based wholly on the absence of a significant shift in hearing thresholds during service. This is an insufficient reason alone to opine against service connection. Hensley v. Brown, 5 Vet. App. 155 (1993). Accordingly, the January 2015 opinion is of no probative value. Based on the above, the Board finds that a preponderance of the evidence weighs in favor of a finding that the Veteran's hearing loss, regardless of the severity, is related to his conceded in-service noise exposure. The most probative evidence of record are the September 2010 and January 2012 private medical opinions, and the May 2017 VA examination. The opinions are based on an accurate history of the Veteran's noise exposure and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the requirement of a nexus between service and the Veteran's current hearing loss is met. The remaining inquiry for the Board is whether the Veteran has a current diagnosis of hearing loss for VA purposes. The August 2020 Court Memorandum Decision found that the Board erred in finding that the Veteran did not have a current disability. Specifically, the Court's decision noted that both the Board and a VA examiner who conducted a 2017 audiological examination noted that the Veteran had hearing loss for VA purposes at some point during the pendency of the appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (with the absence of proof of a present disability there can be no valid claim). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 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. The Veteran's claim for service connection for bilateral hearing loss was received in April 2008. Accordingly, the evidence of record need only show that the Veteran had hearing loss for VA purposes at some point during the pendency of the appeal. A review of the medical evidence shows that at the time of a May 2008 audiological examination, the results as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 45 35 45 LEFT 40 35 35 30 35 Notably, the May 2017 examiner acknowledged that mild hearing loss was observed for all tested frequencies bilaterally, but indicated that the condition was not permanent. At the time of a July 2008 audiological examination, the Veteran's audiometric testing showed hearing loss for VA purposes in the left ear. The results as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 25 15 30 LEFT 30 30 25 25 35 Likewise, at the time of an August 2009 audiological examination, the Veteran's audiometric testing showed hearing loss for VA purposes in the right ear. The results as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 45 50 35 LEFT 25 30 30 20 20 The Veteran's audiometric testing in September 2009 showed hearing loss for VA purposes bilaterally. The results as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 45 40 35 LEFT 35 35 35 40 35 Again, in July 2010, the Veteran's audiometric testing showed hearing loss for VA purposes bilaterally. The results as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 15 20 30 LEFT 20 35 30 25 30 Given the above findings, the Board concludes that the Veteran had hearing loss for VA purposes at multiple points during the pendency of the appeal. While the Board does not overlook the May 2017 examiner's opinion that the hearing loss was not permanent and may have resolved at some point, this finding is not fatal to the Veteran's claim. McClain, 21 Vet. App. 319 (2007). Thus, resolving all reasonable doubt in favor of the Veteran, the requirement of a current disability has been met. In sum, the preponderance of the evidence shows that the Veteran had a current diagnosis of bilateral hearing loss during the pendency of the appeal, that he was exposed to hazardous noise during service, and that his hearing loss is related to the noise exposure. Accordingly, service connection for bilateral hearing loss is warranted. 2. Entitlement to an initial rating in excess of 10 percent for tinea versicolor In January 2009, the RO granted service connection for tinea versicolor and assigned an evaluation of 10 percent effective April 24, 2008. The Veteran contends that his tinea versicolor warrants an initial rating in excess of 10 percent. The Veteran's tinea versicolor is rated under Diagnostic Code 7820-7806. Here, the use of Diagnostic Codes 7820-7806 reflects that the Veteran's tinea versicolor is not listed elsewhere in the diagnostic codes pertaining to the rating of skin disabilities codified at 38 C.F.R. § 4.118 under Diagnostic Code 7820 and that the rating assigned is based on the criteria for rating dermatitis under Diagnostic Code 7806. During the pendency of this appeal, effective August 13, 2018, VA amended Diagnostic Code 7806, in part, to include a definition of "systematic therapy" as treatment administered through any route other than the skin. However, the former rating criteria, which did not define "systematic therapy," are applicable to claims that were pending prior to the effective date of the new rule, when it is more favorable to a Veteran. Burton v. Wilkie, 30 Vet. App. 286 (2018) (citing Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In this regard, the Board notes that the Veteran's claim was pending prior to August 13, 2018, so that the prior and amended versions of Diagnostic Code 7806 are applicable to this case, depending on which version is more favorable to the Veteran. The Board will consider the Veteran's claim under both the old and new rating criteria, and the more favorable criteria will be applied. Prior to the August 2018 amendment, a 10 percent rating is warranted if the skin condition is manifested on at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas 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. A 30 percent rating is warranted if the skin condition is manifested on 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if the skin condition is manifested on more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Under the amended Diagnostic Code 7806, a rating is determined using the General Rating Formula for Skin. Under the General Rating Formula for Skin, a noncompensable rating is warranted if the skin condition requires no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is warranted if the skin condition is manifested by one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted if the skin condition is manifested by at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted if the skin condition is manifested by at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed area affected; or constant or near-constant systemic therapy including, but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Where a law or regulation changes during the pendency of a case, the version most favorable to the appellant will generally be applied. See West v. Brown, 7 Vet. App. 70, 76 (1994), Hayes v. Brown, 5 Vet. App. 60, 66 67 (1993), Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The VA General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the Veteran had prior to enactment of the new rule. See VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g), can be no earlier than the effective date of that change. VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. There have been no specific arguments presented as to which version of the criteria should apply, but the Board finds that the previous version is broader as it does not require the presence of characteristic lesions. Regarding the meaning of systemic therapy under the previous criteria, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit determined that constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs under the previous DC 7806 is generally not inclusive of topical corticosteroids. Instead, systemic therapy means treatment pertaining to or affecting the body as a whole,' whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied'. Johnson, 862 F.3d at 1355. The Federal Circuit concluded that the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of the case. Id., at 1356. This interpretation of the term systemic therapy applies prior to the August 13, 2018, effective date of the new criteria. Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (noting that a new interpretation of a statute retroactively affects decisions still open on direct review). The United States Court of Appeals for Veterans Claims (Court/CAVC) again addressed systemic therapy in the context of topical treatment in Burton v. Wilkie, 30 Vet. App. 286 (2018). The Burton Court stated that, when considering topical therapy as systemic therapy, the Federal Circuit Court's Johnson decision was not limited to situations involving large-scale application of topical treatment. Id. at 291. Rather, the Court held that there are at least two other potential ways of showing that a topical treatment is systemic: (1) the method by which the topical treatment works, and (2) its side effects. Id. The 10 percent rating granted in January 2009 was based on a November 2008 VA examination at which the Veteran indicated he had discoloration and dry skin patches, but had not had any treatment for the condition within the past 12 months. Upon physical examination, tinea versicolor was noted on the shoulders, back and ankles. The percentage of exposed areas affected was 0 percent and the total body area affected was measured between 10 and 20 percent. In a private treatment record dated December 2010, a Dr. Y. indicted the Veteran had a "constant irritation and itching on his chest and back." Based on this evidence, the Board remanded the claim for another VA examination in March 2012. In May 2012, the Veteran underwent a VA examination. The Veteran claimed intermittent attacks of "patches on back and head, sometimes the skin itches and flakes." He indicated this would occur 2 to 3 times a month, for a couple of days. He indicated the rash was triggered by sweating. He indicated that a few years previously, he was prescribed shampoo that helped, but currently he was not on any treatment for the rash. There was no scarring or disfigurement of the head, face or neck. The Veteran did not have any benign or malignant skin neoplasms or any systemic manifestations due to skin disease. It was indicated the Veteran did not have any visible skin conditions. At the time of a May 2015 examination, it was noted the Veteran continued to have intermittent breakouts of rash accompanied with symptoms of pruritus several times a year, usually precipitated by sweating for which he used a prescription shampoo. It was noted the rash usually occurred on the head, back and chest area. It was noted the Veteran did not have a rash at the time of the examination and that none of the Veteran's skin conditions caused scarring or disfigurement of the head, face or neck. The Veteran did not have any benign or malignant skin neoplasms or any systemic manifestations due to any skin diseases. The examination report indicated the Veteran had been treated with topical medications, specifically prescription shampoo for 6 weeks or more, but not constantly during past 12 months. Other treatments were denied, and it was noted that his skin conditions were not visible on his face, neck, or hands. Following the May 2015 examination, this matter was before the Board in February 2016. The Veteran's claim for an initial rating in excess of 10 percent was denied. The Veteran appealed the Board's denial of his claim to the Court, which issued an order in October 2016 granting an October 2016 Joint Motion for Partial Remand (JMPR). Pursuant to the terms of the October 2016 JMPR, the Veteran was to be afforded a VA examination that took place during a flare-up of his condition. Additionally, the VA examiner was instructed to discuss the Veteran's reports of using a prescription shampoo, in order to clarify whether the shampoo was comparable to a corticosteroid or other immunosuppressive drug. The Veteran was then afforded a VA examination in December 2017. The Veteran was asymptomatic at the time and the examiner did not provide an explanation as to why the examination was not conducted during a flare-up or why that was not possible. Nor did the examiner include a discussion of the Veteran's prescription shampoo. As such, the Veteran's claim was again remanded in March 2019 to obtain a new VA examination conducted during a flare-up of the condition, if possible. The Veteran was afforded a VA examination in November 2019. He reported having flare-ups during warmer seasons and his condition getting better during the colder seasons. The examiner noted that the current examination was being conducted during the beginning of a cold season. The Veteran reported being treated with topical medication over the past 12 months and denied any treatments or procedures other than systemic or topical medications during the same period. Less than 5 percent of the Veteran's exposed area and total body area were affected. As the November 2019 examination was not conducted during a flare-up and the examiner did not include a discussion of the Veteran's shampoo, the AOJ requested a new VA examination. The Veteran was afforded a VA examination via video telehealth in August 2020. The Veteran reported that his condition had worsened and was recurring more frequently. He reported that the condition was occurring on a daily basis and lasting 2-3 days. He reported using Selsun blue shampoo and hydrocortisone cream for itching. He also reported using over-the-counter alcohol on occasion, as well as oatmeal lotion for relief. The examiner indicated that the Veteran's shampoo was a topical medication that was used 6 weeks or more, but not constantly during the past 12 months. The examiner indicated the same as to the Veteran's hydrocortisone cream. The Veteran denied any treatments or procedures other than the topical medications during the past 12 months. The examiner reported that the Veteran did not have any visible lesions or a flareup at the time of the examination. In August 2020, the AOJ requested an addendum medical opinion to provide an explanation as to why the Veteran could not be examined during a flare-up. The Veteran was afforded an addendum opinion in September 2020. The examiner indicated that the examination was performed at a time that was available for both the patient and an available examiner; especially given the restrictions posed by COVID-19. The examiner further stated that although the Veteran reported daily flareups, there was no evidence of a flareup on physical examination. Additionally, the examiner noted that the August 2020 examination did not show any objective findings of the Veteran's service-connected skin condition. When both the current and former criteria is considered for rating the Veteran's tinea versicolor, the Veteran is not eligible for an initial rating in excess of 10 percent under Diagnostic Code 7806. With respect to both the previous and amended criteria of the diagnostic code, the Veteran did not experience a skin condition manifested by characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or did not undergo systemic therapy of any kind at any point during the period on appeal. At most, 10 to 20 percent of the Veteran's total body area was affected and the condition was treated with topical medication only. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal for an initial rating in excess of 10 percent for tinea versicolor is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that his right ankle disability is related to active service. Specifically, he contends that his right ankle disability is a medically unexplained chronic multi symptom illness, warranting presumptive service connection under 38 C.F.R. § 3.317. A medically unexplained chronic multi symptom illness (MUCMI) is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317 (a)(2)(ii). It means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. The August 2020 Court Memorandum Decision found that the Board erred in its determination that as the Veteran had a confirmed diagnosis of degenerative joint disease of the right ankle, the condition could not be a MUCMI. Specifically, the Court found that the Board did not discuss whether the etiology and pathophysiology of Veteran's s right ankle were conclusive; an analysis that is critical for determining whether a condition diagnosed or undiagnosed qualifies as a MUCMI. However, the Court affirmed the Board's finding that service connection was not warranted for the Veteran's right ankle disability on a direct basis. The matter was remanded to the Board to determine whether the Veteran's diagnosed right ankle disability is a MUCMI. No VA examination to date has addressed whether the Veteran's diagnosed right ankle disability is a MUCMI. Accordingly, remand is warranted to obtain such an opinion. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Finally, because a decision on the Veteran's right ankle issue could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined, and a remand of the claim is required. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to review the etiology and pathophysiology of the Veteran's right ankle disability as a potential medically unexplained chronic multi-symptom illness (MUCMI). The entire claims file and a copy of this remand must be made available to the examiner for review. Following review of the record, the examiner is asked to address the following: a.) Concerning the Veteran's right ankle disability, does the Veteran exhibit a disability pattern consistent with a diagnosable, but medically unexplained chronic multisymptom illness? The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Examples include, but are not limited to, the following: chronic fatigue syndrome; fibromyalgia; and functional gastrointestinal disorders. The response to this question should include a discussion of the pathophysiology and etiology of the Veteran's claimed right ankle disability and/or reported symptomology. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.