Citation Nr: 21032459 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 20-08 313 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to a compensable rating for chloracne including benign skin neoplasms is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss is related to in-service acoustic trauma. 2. The Veteran's chloracne including benign skin neoplasms with acne does not involve deep acne affecting less than 40 percent of the neck and face, or deep acne other than on the face and neck, or; disfigurement of the head, face, or neck, or; painful or unstable; or scars with any other disabling effects. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for a compensable rating for chloracne including benign skin neoplasms, currently rated 10 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7819-7829. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued denials of claims for service connection for bilateral hearing loss and tinnitus and continued a noncompensable rating for chloracne including benign skin neoplasms. The Veteran disagreed with the RO's and a Statement of the Case (SOC) was issued in January 2020 addressing the matters. The Veteran timely appealed. The Veteran's claim of service connection for bilateral hearing loss and tinnitus were previously denied in an October 2014 rating decision, from which the current appeal originates. However, the Veteran submitted a Statement in Support of Claim (VA Form 21-4138) in September 2015. This submission provided details regarding in-service acoustic trauma. As new and material evidence was received within a year of the October 2014 rating decision denying the claim of service connection for bilateral hearing loss and tinnitus, the rating decision did not become final, and the claims of service connection for bilateral hearing loss and tinnitus remained pending. 38 C.F.R. § 3.156 (b). In a January 2020 rating decision, the RO granted service connection for tinnitus and assigned the maximum 10 percent rating, effective April 30, 2014. The grant of service connection for tinnitus constitutes a full award of the benefits sought on appeal with respect to that issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The record currently available to the Board contains no indication that the Veteran initiated an appeal with the initial ratings or effective dates assigned. Thus, the matter is not in appellate status. In May 2021, the Veteran testified during a virtual Board hearing before the undersigned VLJ. A transcript has not yet been associated with the file; however, one is not necessary for a decision on the claims because the service connection claim is being granted and it was agreed during the hearing that the rating claim would be decided based on the evidence of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an organic disease of the nervous system and therefore a chronic disease. In addition, 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 1. Bilateral Hearing Loss In this case, the evidence of record, particularly a December 2019 VA examination report, reflects current bilateral hearing loss disability. The audiometric scores reflect thresholds above 40 decibels at multiple frequencies in both ears. Thus, the first element of service connection has been met. The evidence of record also supports a finding that there was in-service noise exposure. The Veteran's service treatment records (STRs) do not include any hearing loss complaints or treatment. In a September 2015 statement, the Veteran reported noise exposure when he flew the Bird Dog aircraft during service. He stated that the helmet he wore did not keep a lot of the aircraft noise away from his ears. He indicated that he sat four to five feet behind the aircraft engine, and he flew the aircraft for 2.5 years, with about 2000 hours of flight time. The Veteran noted that he did not use hearing protection during firearms training. He further noted that he was subjected to the explosions of mortars and rockets while stationed in Vietnam. The Veteran's DD Form 214 shows that his military occupation specialty aviator and that he served in Vietnam. At his May 2021 Board hearing, the Veteran testified that his hearing was fine prior to service, and that he noticed hearing loss at the end of service. The Veteran also testified that while serving in Vietnam, his small reconnaissance plane was hit by enemy fire. When a veteran has not received a medal indicative of combat, the Board must determine on a case by case basis whether he participated in combat with the enemy. VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an almost unlimited variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The above evidence including the service in Vietnam, military occupation specialty, and lay statements, reflects that the Veteran engaged in combat. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use satisfactory lay or other evidence to establish that he was injured or incurred or aggravated a disability while on active duty, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran's testimony that he suffered acoustic trauma in service. Moreover, the fact that the claimed cause of the Veteran's hearing loss, i.e., acoustic trauma from enemy fire and related noise, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. The Veteran underwent a VA audiological exam in August 2014. The examiner determined the Veteran's left ear hearing levels within normal limits for VA purposes. The examiner opined that bilateral hearing loss was less likely as not caused by or a result of an event in military service. The examiner explained that the STRs reveal that the Veteran's hearing levels were within normal limits on hearing tests performed in 1966 and at separation in December 1970. The examiner noted no positive threshold shift beyond normal measurement variability demonstrated from 1966 to 1970. The examiner further noted that per the 2006 Institute of Medicine, National Academy of Sciences study ("Noise and Military Service: Implications for Hearing Loss and Tinnitus"), based on current understanding of auditory physiology there is, at this time, insufficient evidence to support the existence of delayed-onset hearing loss from noise exposure. In December 2019, the Veteran underwent a VA audiological exam. The examiner opined that bilateral hearing loss was less likely as not caused by or a result of an event in military service. The examiner explained that there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. The examiner noted no report of complaint/treatment for hearing decrease in STRs or at separation. The examiner indicated that although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well established, auditory damage and hearing loss are not conceded based on noise alone. The examiner noted that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. In this case, although the August 2014 and December 2019 VA examiners rendered opinions that the Veteran's current bilateral hearing loss was not related to in-service noise exposure, such opinions are of no probative value, as they was based on the absence of in-service evidence of a bilateral hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Additionally, the VA examiners failed to consider the Veteran's combat service and lay statements, to include his assertion of bilateral hearing loss symptoms in and since military service. For these reasons, the Board finds the August 2014 and December 2019 VA opinions are of little, if any probative weight. The Board finds that, given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran's lay statements along with the other evidence above regarding the Veteran's duties in service provides a sufficient basis to conclude that his current hearing loss is related to the acoustic trauma he suffered in service. There is no other probative evidence of record which attributes the Veteran's current hearing loss to any other cause than in-service noise exposure. Based on the evidence of record, and resolving reasonable doubt in his favor, the Board finds that the Veteran currently has bilateral hearing loss which was incurred during his active military service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection for bilateral hearing loss is warranted. 2. Chloracne including benign skin neoplasms The Veteran's chloracne including benign skin neoplasms has been rated as noncompensable (zero percent) under 38 C.F.R. § 4.118, Diagnostic Codes 7819-7829. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. 38 C.F.R. § 4.27. In this case, Diagnostic Code 7819 corresponds with benign skin neoplasms. The specific Diagnostic Code 7829 Under Diagnostic Code 7819, rate as disfigurement of the head face or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment of function. See 38 C.F.R. § 4.118 Under Diagnostic Code 7829, a noncompensable rating is applicable for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent evaluation is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. A 30 percent evaluation is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. The 30 percent rating is the maximum schedular rating allowable under Diagnostic Code 7829; however, this Diagnostic Code permits chloracne to be rated as disfigurement of the head, face or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), if this is the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7829. For the following reasons, a compensable rating is not warranted. An October 2014 VA clinical report shows the Veteran exhibited sites of old chloracne with no major amount of pustulation or areas of involvement. The clinician noted that there is simply a major amount of old scarring. The Veteran underwent a VA examination in January 2015. The examiner noted that the acne did not cause scarring or disfigurement of the head, face, or neck, and the Veteran did not evidence benign or malignant skin neoplasms. The Veteran did not have any systemic manifestations due to the acne. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. He did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. There were no debilitating and non-debilitating episodes. The examiner noted that 0% of exposed and unexposed skin affected and the area affected is on the arms. There was no active disease, just residual flat scarring. The examiner noted that the skin condition did not impact his ability to work. The Veteran underwent another VA examination in December 2015. The examiner noted that the acne did not cause scarring or disfigurement of the head, face, or neck. There was benign or malignant skin neoplasms. The Veteran did not have any systemic manifestations due to the acne. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. He did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. There were no debilitating and non-debilitating episodes. The examiner indicated the Veteran exhibited superficial acne that affects less than 40 percent of face and neck, and body areas other than face and neck. The Veteran had a benign neoplasm not being treated, in watchful waiting status. The examiner indicated that the severity of the chloracne had not changed. Pinpoint scarring could be seen on arms, and facial areal without pustules or current area involvement. The examiner noted that the skin condition did not impact his ability to work. Given this evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's chloracne including benign skin neoplasms has been manifested with deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the neck and face, or; deep acne other than on the face and neck during the appeal. Specifically, an October 2014 VA clinical record shows the Veteran exhibited sites of old chloracne with no major amount of pustulation or areas of involvement. The December 2015 VA examination report shows pinpoint scarring on arms and facial area without pustules or current area involvement. He exhibited superficial acne that affects less than 40 percent of face and neck, and body areas other than face and neck. Indeed, there were no reported findings of deep acne. The VA clinical records do not show symptoms more severe than what was described in the VA examination reports. Additionally, there is no evidence of disfigurement of the head, face, or neck due to chloracne including benign skin neoplasms. The VA clinical records and examination reports do not demonstrate painful or unstable scars, or scars with disabling effects. There are similarly no lay statements of records demonstrating painful scars. In light of the foregoing, the preponderance of the evidence is against a compensable rating for chloracne including benign skin neoplasms. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.