Citation Nr: 21026524 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-34 416 DATE: May 3, 2021 ORDER For the period prior to September 24, 2020, service connection for bilateral hearing loss is denied. Service connection for a left knee disability is denied. For the period since November 8, 2018, but not earlier, a higher rating of 60 percent for the Veteran's service-connected skin disabilities is granted. For the period prior to November 8, 2018, but not earlier, a higher rating of 10 percent for the Veteran's service-connected skin disabilities is denied. REMANDED Entitlement to service connection for a disability manifesting as sleep impairment and loss of concentration, to include sleep apnea, is remanded. FINDINGS OF FACT 1. The Veteran was first shown to have a bilateral hearing loss disability for VA purposes in September 24, 2020. 2. The weight of the evidence is against a finding that the Veteran's diagnosis of patellofemoral degenerative changes first manifested in service or within one year after separation from service with continuity of symptoms, or that it is otherwise related to service. 3. Since November 8, 2018, the evidence show a worsening of the Veteran's service-connected skin disability, which currently effects more than 40 percent of his total body area. 4. Prior to November 8, 2018, the Veteran's skin disability affected less than 5% of his exposed area and over 5% and less than 20% of his total body area CONCLUSIONS OF LAW 1. Prior to September 24, 2020, the criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for a left knee disability are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 3. Since November 8, 2018, the criteria for entitlement to a higher rating of 60 percent for the Veteran's service-connected skin disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.118, Diagnostic Code 7813-7806. 4. Prior to November 8, 2018, the criteria for entitlement to a higher rating than 10 percent for the Veteran's service-connected skin disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.118, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to December 1989. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision. The Veteran testified at a Board hearing in October 2019. The Board remanded this appeal in September 2020. 1. For the period prior to September 24, 2020, service connection for bilateral hearing loss is denied. In September 2020, the Board remanded the issue of entitlement to service connection for bilateral hearing loss. The Board notes that, while an October 2014 VA examination did not show a hearing loss disability for VA purposes, the Veteran, at his October 2019 Board hearing, testified that his hearing loss had worsened in recent years. Based on this assertion of worsening symptoms and considering that the only VA examination of record had been conducted almost six years earlier, the Board concluded that a new VA examination was warranted. Consequently, the Veteran underwent a VA hearing examination in September 2020. This examination, which shows a hearing loss disability for VA purposes, provided the basis for a grant of service connection for bilateral hearing loss, effective September 24, 2020 (date of the VA examination). 10/22/2020, Rating Decision. At issue is whether entitlement to service connection for bilateral hearing loss is warranted prior to September 24, 2020. 10/22/2020, SSOC. Generally, the effective date for a grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. In this case, the Veteran's claim was received on January 21, 2014, many years after separation from service. 01/21/2014, VA 21-526 Veterans Application for Compensation or Pension. However, entitlement to service connection for bilateral hearing loss arose later. Specifically, it arose on September 24, 2020, when a VA examination produced objective evidence that the Veteran's hearing loss met the criteria for it to be considered a disability for VA purposes. 38 C.F.R. § 3.385. As mentioned in the September 2020 Board remand, an October 2014 VA examination shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 20 25 LEFT 15 20 35 20 25 Additionally, speech audiometry revealed speech recognition ability of 96 percent in both ears. These findings do not establish hearing impairment for VA purposes. There is no argument or indication in the record that the Veteran has undergone another audiological examination during the appeal period. The Board acknowledges the Veteran's assertion that his hearing loss disability worsened during the appeal period. The October 2014 and September 2020 VA examinations confirm that his condition worsened during the almost six years between examinations. Unfortunately, Congress has specifically limited entitlement to service connection for hearing loss to cases where a veteran's hearing loss meets the auditory thresholds set out in 38 C.F.R. § 3.385. In other words, entitlement to service connection for hearing loss arises as soon as there is competent evidence that the claimant's hearing loss meets these auditory thresholds. While the Veteran is competent to report his observable symptoms and history, he is not competent to diagnose actual hearing impairment or a hearing loss disability for VA purposes, as this diagnosis requires objective testing and medical expertise for interpretation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). To summarize, the competent evidence shows that the Veteran did not have a hearing loss disability for VA purposes when he filed his claim or proximately prior to this date. Nevertheless, a recent VA examination has shown that his hearing loss now meets the criteria to be considered a disability for VA purposes. Based on this examination, the RO granted service connection for bilateral hearing loss, effective September 24, 2020 (date of the VA examination). The Board finds that an earlier effective date for the grant of service connection for bilateral hearing loss is not warranted, as there is no competent evidence that the Veteran's bilateral hearing loss met the criteria to be considered a disability for VA purposes prior to September 24, 2020. 2. Service connection for a left knee disability is denied. The Veteran seeks service connection for a left knee disability. 04/30/2014, Report of General Information. An October 2014 VA examination shows a diagnosis of degenerative joint disease of the patellofemoral joint, bilaterally. At the examination, the Veteran stated that he experienced, and was treated for, a left knee injury in service. Service treatment records show treatment for complaints of a painful knot in the left knee. 04/23/2014, STR-Medical, at 10. The VA examiner acknowledged this history but opined that the Veteran current bilateral knee disability is less likely than not related to his knee symptoms in service. The examiner explained that the Veteran's patellofemoral degenerative changes, as shown in X-rays, are more likely than not related to the Veteran's genetics and age and less likely than not related to the knee pain that he experienced in service. As mentioned, service treatment records show that the Veteran experienced left knee pain in service. There is, however, no argument or indication that the current diagnosis of patellofemoral degenerative changes is either a continuation or a consequence of the in-service symptoms. Significantly, the medical and lay evidence does not tend to show a continuity of symptomatology between service and the present time. Furthermore, the competent evidence does tend to show that the current condition was first diagnosed in 2014, approximately 25 years after separation from service. A VA examiner has considered the question of whether the Veteran's left knee disability is related to service and concluded that it less likely than not related to service. Rather, the examiner opined that is more likely than not related to the Veteran's genetics and age. This opinion is consistent with the evidence of record, which shows that the Veteran's left knee disability first manifested many years after service this adds to its probative value and weight. The evidence also shows that the current diagnosis of patellofemoral degenerative changes affects both knees of Veteran. The fact that the current diagnosis also affects the Veteran's right knee, which has not been shown to have been injured in service, further supports the VA examiner's conclusion that the current diagnosis is unrelated to the left knee symptoms in service. For these reasons, the Board finds the VA opinion to be adequate and highly probative. VA treatment records obtained in October 2020 show that the Veteran sought treatment for his left knee in November 2019. He complained of left knee pain for two or three days and denied injury or trauma. He stated that he had had issues in the past and expressed interest in physical therapy. 10/22/2020, CAPRI, at 10. As this treatment note introduces no new information about the Veteran's history or the nature of his disability, the Board finds that a new VA opinion is not necessary. The Board acknowledges the Veteran's assertion that his left knee diagnosis is related to his in-service symptoms. Unfortunately, while he is competent to report his medical history and observable symptoms, he is not competent to diagnose a medical condition or provide a medical opinion regarding the etiology of his current knee disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Veteran is not competent to provide an etiological opinion and his statements in this regard lack weight. In sum, the preponderance of the competent and probative evidence weighs against a finding that the Veteran's current left knee diagnosis first manifested in service or within a year after service with continuity of symptomatology since then, or that it is otherwise etiologically related to service. As such, service connection for a left knee disability is denied. 3. For the period since November 8, 2018, but not earlier, a higher rating of 60 percent for the Veteran's service-connected skin disabilities is granted. The Veteran's service-connected skin disability is currently rated as 10 percent disabling under DC 7806. For the reasons explained below, the Board finds that a higher rating of 60 percent is warranted, but only from November 8, 2018. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for 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 assigned for 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 assigned for 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code [7806, 7815, 7816, 7821, 7822]. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for 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 assigned for at least 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, 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 assigned at least one of the following: characteristic lesions involving more than 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 assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant 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 over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. *** An October 2014 VA examination shows diagnoses of dyshidrotic eczema, with multiple vesicles at various stages (some ruptured) in the left land, and tinea versicolor, with mildly hypopigmented macules) on bilateral shoulders and chest. Both diagnoses were found to be at least as likely as not related to service. At his October 2019 Board hearing, the Veteran reported recent VA treatment for his symptoms. He also reported that his skin symptoms had worsened since the October 2014 VA examination. 10/18/2019, Hearing Transcript, 14 & 16. The Veteran underwent a second VA examination in October 2020. The examination report reiterates the diagnoses of dyshidrotic eczema and tinea versicolor and adds a third diagnosis of chronic urticaria. Current symptoms were described as severe left hand severe dryness, cracking, itching, bleeding and pain, with fungal rash and itching all over his body. Regarding treatment, the examiner noted that it consisted of constant or near constant use of topical corticosteroids or other immunosuppressive medication, constant or near constant use of oral antihistamines, and additional topical medications for the tinea versicolor and eczema. On physical examination, the examiner concluded that the eczema affected over 5% and less than 20% of the Veteran's total body and exposed areas, that both the tinea versicolor and chronic urticaria affected over 5% and less than 20% of the Veteran's exposed area and over 40% of his total body area. Regarding functional impact, the examiner indicated that severe symptoms associated with left hand dyshidrotic eczema affect job attendance, performance, concentration, and wellbeing, that severe itching due to chronic urticaria affects job productivity and self-esteem due to chronic scratching, limiting the Veteran's ability to work around food, and that pain on left hand associated with dyshidrotic eczema can affect sedentary and occupational jobs because the Veteran cannot lift objects above 50 pounds to left hand pain. In her comments, the examiner noted that the chronic urticaria is directly due to or related to the service-connected diagnoses. VA treatment records obtained in October 2020 show that, in September 2018, the Veteran had a teledermatology consult. The Veteran complained of constant rash to hands, chest, and upper back, worse on humid days. In November 2018, the Veteran had an in-person dermatology consult. It was noted that he had rash on his hands and back, with occasional pain in his hand and some hives on his shoulders, intermittently. On physical exam, urticarial plaques were notes across bilateral shoulders. The note shows diagnoses of tinea manum, tinea versicolor and urticaria. An addendum from the dermatologist indicates, "Will avoid systemic antifungals with elevated LFTs and potential liver mass." A November 2018 VA primary care note indicates that the Veteran sought treatment for diffuse, progressive swelling, which appeared to be an allergic reaction to a skin medication. A January 2019 dermatology note explains that after last dermatology visit hives had become more widespread and the Veteran was placed on a steroid taper through his VA primary care provider, with hives improving thereafter. Based on the October 2020 VA examination, the Board finds that the Veteran is entitled to the maximum rating of 60 percent under the General Rating Formula, as the examination shows characteristic lesions involving more than 40 percent of the entire body. The Board further finds that the effective date for this higher rating should be November 8, 2018, date of the in-person dermatology consult that first references the Veteran's urticaria and documents a worsening of his symptoms. For the period prior to November 8, 2018, the Board finds that a rating higher than 10 percent is not warranted, as the relevant evidence shows that the Veteran's skin disability affected less than 5% of his exposed area and over 5% and less than 20% of his total body area. See 11/13/2014, C&P Exam. These findings more closely approximate criteria for the currently assigned rating of 10 percent. Additionally, there is no indication that the Veteran's skin conditions required systemic treatment during the relevant period. Systemic therapy means treatment pertaining to or affecting the body as 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. In this case, the evidence during the relevant period only show topical treatment. In sum, the Board finds that a higher rating of 60 percent is warranted for the Veteran's skin disabilities, but only for the period since November 8, 2018. REASONS FOR REMAND Entitlement to service connection for a disability manifesting as sleep impairment and loss of concentration, to include sleep apnea, is remanded. The Veteran seeks service connection for a mental health disability described as "loss of concentration (ADHD)." 01/21/2014, VA 21-526 Veterans Application for Compensation or Pension. At his October 2019 Board hearing, the Veteran indicated that he had recently been evaluated at a VA medical facility for symptoms related to his claimed mental health disorder. He explained that his condition has still not been diagnosed. He described his symptoms as loss of focus and lack of interest. He stated that he began to experience such symptoms toward the end of service, specifically, when he was stationed in Japan. 10/18/2019, Hearing Transcript, at 5-6. VA treatment records obtained in October 2020 confirm that the Veteran sought mental health treatment in September 2019. The relevant treatment note reflects that the Veteran reported distress about a work-related issue, to include thoughts about hurting someone. He expressed interest in therapy. 10/22/2020, CAPRI, at 30. These records further show that the Veteran failed to appear at an October 2019 mental health clinic appointment. Id. at 18. There is no record of subsequent of appointments. As requested by the Board in this September 2020 remand, the Veteran underwent a VA examination in October 2020. Regarding the Veteran's complaints of loss of concentration and focus, and lack of interest, the examiner concluded that there was no diagnosis. The examiner explained that the Veteran's reported service connection are not indicative of any mental or neurocognitive disorder, or consistent with ADHD or any other neurodevelopmental disorder. The examiner, however, did not that the Veteran had reported ongoing sleep difficulties, diagnosed as insomnia disorder, which may be contributing to his subjective complaint of lack of focus. The examiner opined that the Veteran's sleep difficulties are more likely than not due to his diagnosed obstructive sleep apnea. As mentioned, the Veteran, in his January 2014 claim for benefits, described his disability as "loss of concentration (ADHD)." The RO characterized, and developed the claim for, this claimed disability as a mental health issue. The October 2020 VA examination, however, suggests that the Veteran's claimed lack of concentration is an indirect manifestation of his diagnosed sleep apnea. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran has not asserted entitlement to service connection for sleep apnea. Nevertheless, considering the October 2020 VA opinion, the Board finds that the issue of service connection for sleep apnea is reasonably encompassed by the Veteran's claim of service connection for lack of concentration. As mentioned, the Veteran has testified that he has experienced his claimed symptoms since service, which raises the question of whether his sleep apnea, to the extent that it is the root cause of the claimed lack of concentration, began in service. In this regard, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons, 23 Vet. App. at 5. "[T]he claimant's intent in filing a claim is paramount to construing its breadth." Id. To effectuate that intent, "VA shall afford lenity to a veteran's filings that fail to enumerate precisely the disabilities included within the bounds of a claim," which "is best accomplished by looking to the veteran's reasonable expectations in filing the claim and the evidence developed in processing that claim." Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020); see also Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742 (Apr. 28, 2021) (citing and discussing the Clemons and the scope of a Veteran's claim/appeal). A remand is therefore warranted for the RO to develop, to include an examination, and adjudicate this aspect of the claim prior to the Board's appellate review. This matter is REMANDED for the following actions: 1. Take appropriate action to assist the Veteran in the development of the inferred claim of service connection for sleep impairment, to include sleep apnea. 2. After completing number #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep impairment, to include sleep apnea. For any current diagnosis, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The Veteran has reported symptoms of loss of concentration since service and a VA examiner has opined that this symptom is related to sleep impairment caused by sleep apnea. (Continued on the next page) A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.