Citation Nr: 21039768 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-15 870 DATE: July 1, 2021 ORDER 1. Entitlement to service connection for tinnitus is granted. 2. Entitlement to a compensable rating for bilateral tinea pedis is denied. REMANDED 3. Entitlement to service connection for residuals of right foot surgery, to include as secondary to service-connected bilateral tinea pedis, is remanded. 4. Entitlement to service connection for bilateral hearing loss is remanded. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to October 4, 2012, is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus is reasonably shown to have had onset in service, and to have persisted since. 2. At no time under consideration is the Veteran's tinea pedis shown have affected at least 5 percent of the entire body or exposed areas, or to have required intermittent systemic therapy such as with corticosteroids or other immunosuppressive drugs; related scarring has not been noted. CONCLUSIONS OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303(b), 3.304, 3.309(a). 2. A compensable rating for tinea pedis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Code 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1985 to October 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2012 and September 2012 rating decisions. In November 2015 and November 2016 this matter was remanded (by Veterans Law Judges other than the undersigned) for further development. In September 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. An interim ( November 2020 ) Decision Review Officer (DRO) rating decision granted service connection for posttraumatic stress disorder (PTSD), incorporating that entity into the previous grant of service connection for unspecified anxiety disorder, and increasing the assigned rating to 100 percent effective October 4, 2012. The decision also granted service connection for left shoulder strain, rated 20 percent, effective July 1, 2011. Accordingly, those matters are no longer before the Board. The rating decision also essentially found that entitlement to a TDIU was re-raised by the record and deferred adjudication. A February 2021 DRO decision granted service connection for lumbosacral strain, rated 40 percent, effective October 4, 2012, and granted special monthly compensation (SMC) based on housebound criteria from October 4, 2012. Accordingly, the matter of service connection for lumbosacral strain is no longer before the Board. An April 2021 supplemental Statement of the Case (SSOC) denied a TDIU rating. Because a November 2020 DRO decision increased the rating for unspecified anxiety disorder to 100 percent effective October 4, 2012, and a February 2021 DRO decision granted SMC from October 4, 2012, the Board has characterized the TDIU issue as entitlement to TDIU prior to October 4, 2012 (as entitlement to TDIU from that date has been rendered moot by the assignment of a 100 percent schedular rating by the November 2020 rating decision). 1. Service connection for tinnitus is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Tinnitus (as an organic disease of the nervous system) is a chronic disease listed in 38 C.F.R. § 3.309(a), and service connection may be established by showing continuity. See 38 C.F.R. § 3.303(b). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's service records note that he served on an aircraft carrier flight deck. His service treatment records (STRs) contain no mention of complaints, diagnosis or treatment pertaining to tinnitus. A June 2011 private treatment record notes that the Veteran reported periodic tinnitus in his ears (constant in his left ear for the last several years), that he was exposed to (aircraft) noise during service, and that he was not exposed to hazardous level noise in his postservice employment. An August 2011 VA treatment record notes that the Veteran reported left ear tinnitus. On August 2011 VA hearing loss examination, the Veteran reported noise exposure on a flight deck and that he used ear plugs and earmuffs. He denied occupational or recreational noise exposure. He reported recurrent tinnitus that lasted a few minutes at a time. The examiner did not elicit information regarding when the tinnitus was first noted, and opined that the Veteran's tinnitus was not caused by or related to acoustic trauma in service. A June 2012 VA treatment record notes that the Veteran reported occasional tinnitus. A June 2015 VA treatment record notes that he reported his tinnitus was becoming significantly worse in each ear, with the left ear worse than the right ear. At the September 2017 Travel Board hearing, the Veteran testified that he has had "ringing in his ears" since his Naval service. On October 2020 hearing loss examination, the Veteran reported recurrent tinnitus and that he did not remember the exact circumstance of the onset of his tinnitus. The examiner opined that the Veteran's tinnitus was at least as likely as not a symptom associated with his bilateral hearing loss, because tinnitus is known to be a symptom associated with hearing loss. She also noted that the Veteran had a gradual sensorineural hearing loss that at least as likely as not was increasing his awareness of the tinnitus due to his hearing declining over time. Based on the Veteran's Naval occupation of flight deck crewman and his accounts of exposure to noise during service, it may reasonably be conceded that he was exposed to hazardous levels of noise in service. Tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it). The Veteran is competent to establish by his own accounts that he has tinnitus (had it continuously since service). He reported at the September 2017 Travel Board hearing that he has had tinnitus since service. It is not in dispute that he now has tinnitus. What the Board must decide is a question of the Veteran's credibility (in his accounts that his tinnitus began in service, and has persisted). There is evidence for and against his claim. In June 2011, he reported constant (left ear) tinnitus for several years, on August 2011 examination he reported recurrent tinnitus (but was not asked about onset), and on October 2020 examination he reported recurrent tinnitus and that he did not remember the exact circumstance of the onset of his tinnitus. The evidence in support of the claim consists of his September 2017 sworn hearing testimony that he has had tinnitus continuously since service. The Board finds that account reasonably credible. It is not inconsistent with the circumstances of his service (serving on an aircraft carrier flight deck), and is not necessarily contradicted by his [earlier and later] statements in June 2011, August 2011, or October 2020. Notably, the Veteran's report in June 2011 that he had experienced tinnitus for "several years" is ambiguous but could plausibly relate back to service, and although the Veteran did not remember the exact circumstance of the onset of his tinnitus on October 2020 examination, it is plausible that instead of trying to answer when it was that he first noticed an occurrence of tinnitus, he may simply have not remembered where it occurred. Finding the evidence to be in relative equipoise, and resolving reasonable doubt in the Veteran's favor (see 38 C.F.R.§ 3.102), the Board finds that it is shown that his tinnitus began in service and has persisted since. Service connection for tinnitus is warranted. 2. Entitlement to a compensable rating for tinea pedis is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in the Veteran's favor. 38 C.F.R. § 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As this appeal is from the initial rating assigned with the award of service connection, "staged" ratings are for consideration. Fenderson v. West, 12 Vet. App. 119 1999). Tinea pedis is rated under Code 7813. Under Code 7813 (which notes that the disorder is to be evaluated under the General Rating Formula for the Skin) a 10 percent rating is assigned for involvement of at least 5, but less than 20, percent of the entire body or of exposed areas, or; intermittent systemic therapy such as with 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 for involvement of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as with corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating requires involvement of more than 40 percent of the entire body or exposed areas, or constant or near- constant systemic therapy such as with corticosteroids or other immunosuppressive drugs required during the past 12- month period. 38 C.F.R. § 4.118. Generally, the application of topical corticosteroids does not mean systemic therapy, "particularly if those uses of topical corticosteroids affect only the area to which they are applied." Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In every instance where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. On August 2011 skin diseases examination, bilateral tinea pedis was diagnosed. It was noted that such disease did not cause scarring or disfigurement of the head, face, or neck. The examiner indicated that the Veteran had been treated with topical medications (Miconazole and Terbinafine cream) on a constant/near constant basis in the past 12 months. He reported no debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. On examination, tinea pedis was noted to involve less than 5 percent of total body area, and no exposed areas. The examiner opined that the Veteran's tinea pedis did not impact his ability to work. At the September 2017 Travel Board hearing, the Veteran testified that his tinea pedis frequently itched and covered the bottom of his feet and heels, and he reported that he used powders and creams to control the itching and spreading. On February 2020 skin diseases examination, bilateral tinea pedis was diagnosed. The Veteran reported that the skin on his feet burned, itched, and cracked and that he used athlete's foot cream. The examiner indicated that the Veteran had been treated with topical antifungal medications on a constant/near constant basis in the past 12 months. On examination, tinea pedis was noted to involve less than 5 percent of total body area, and no exposed areas. The examiner opined that the Veteran's tinea pedis did not impact his ability to work, his symptoms were constant in spite of maintenance therapy with topical antifungals, and that no systemic effects were observed, and no systemic therapy was used. Upon review of the record, the Board finds that there is no evidence that at any time under consideration the Veteran's tinea pedis affected at least 5, but less than 20, percent of the entire body or exposed areas, or required intermittent systemic therapy such as with corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. On August 2011 and February 2020 VA skin examinations, the Veteran's tinea pedis affected less than 5 percent of the total body area and exposed area and he denied intermittent systemic therapy. Additionally, although the Veteran reported on examination that he used Miconazole, Terbinafine cream, and antifungal medication, the application of such medications does not mean systemic therapy. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Thus, the criteria for a 10 percent under Code 7813 are not met and a compensable rating for tinea pedis is not warranted. See 38 C.F.R. § 4.31. REASONS FOR REMAND The Board regrets the delay inherent with another remand, but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for residuals of right foot surgery, to include as secondary to service-connected bilateral tinea pedis. On February 2020 VA foot disorders examination, right 5th digit heloma mole removal was diagnosed. The Veteran reported that he had experienced foot pain since 2012 and had surgery on his right 5th toe to remove a heloma mole. The examiner opined that it was less likely than not that the Veteran's right foot disability was related to his service. He explained that the medical evidence was not sufficient, and the Veteran did not have significant residuals of his right foot surgery. The rationale for the opinion does not acknowledge the Veteran's reports that he developed painful corns on the 4th and 5th toes of the right foot, had constant pain while wearing boots, and sought treatment for the pain in service. Additionally, the examiner did not identify all right foot disabilities shown in the record during the period on appeal. As the opinion does not acknowledge the lay statements in the record and all right foot disabilities were not properly identified, it is inadequate for rating purposes and development for another medical opinion is necessary. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 4. Entitlement to service connection for bilateral hearing loss. On October 2020 VA hearing loss examination, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to his service. She explained that the right ear was within hearing normal limits at the time of the Veteran's separation from service. The examiner noted that he had left ear hearing loss on enlistment examination in 1985 and there was no positive shift in puretone thresholds in service, therefore it was less likely as not that the Veteran's left hearing loss was aggravated beyond normal progression due to his military noise exposure. She also noted that August 1985 audiometry showed right ear hearing loss (as opposed to the left) which appeared to be a transcription error because other audiometry in-service supported hearing loss only in the left ear. The provider was asked to opine whether there was clear and unmistakable evidence that the Veteran's left ear hearing loss disability pre-existed his active duty service. In a January 2021 addendum the provider opined that it was clear that there was a hearing loss in the Veteran's left ear prior to service and [that it] was not aggravated by his service because the puretone thresholds were stable in both ears from enlistment to his separation examination. In a March 2021 addendum, the provider opined that the Veteran's right ear hearing loss was most likely due to age related factors and that his MOS had a low probability of hazardous noise exposure. She further indicated that the right ear hearing loss could be due to age related factors related to presbycusis. In April 2021 the Regional Office (RO) requested an addendum because the examiner reported in the March 2021 addendum that the Veteran's MOS is clearly stated as having a low probability of hazardous noise exposure. However, the remand had stated, that the Veteran's occupation in service likely exposed him to hazardous levels of noise. In an April 2021 addendum, the examiner noted that while the Veteran reported exposure to noise on the flight deck, his MOS indicated a low probability of noise exposure (completely ignoring the remand directive) and indicated that there was no significant threshold shift present between entrance in, and separation from, service. The examiner concluded by stating that there was no complete C folder for this Veteran and that she only viewed the available pertinent records. It is not clear by this statement if the examiner only reviewed pertinent records for the April 2021 addendum or if she was not able to review the complete file when providing the October 2020 opinion and the additional addendum opinions. Regarding right ear hearing loss, the Board finds that the October 2020 opinion and addendums are inadequate because although the examiner attempted to provide a likely etiology (age-related factors), she refused to acknowledge, as directed, that the Veteran was exposed to hazardous level noise in service, and the rationale was speculative (that the hearing loss could be related to presbycusis). Regarding left ear hearing loss, the Board finds that the October 2020 opinion and addendums are inadequate because although the examiner opined in multiple opinions that the left ear hearing loss was not aggravated beyond natural progression because there was no significant threshold shift between entrance and separation audiometry, she did not discuss the significance, if any, of the shift in the 3000 Hz and 4000 Hz levels between the August 1985 and October 1985 audiometry. [The Board notes that the August 1985 audiometry shows hearing loss in the right ear; however, the examiner opined that this appeared to be a transcription error because the remaining audiometry consistently showed left ear hearing loss.] Therefore, remand for an adequate medical advisory opinion regarding the etiology of the Veteran's bilateral hearing loss is necessary. 5. Entitlement to a TDIU prior to October 4, 2012. The Veteran asserts that he has been unemployable since June 2009 due to his service-connected disabilities (although he reportedly last worked full time in March 2011). The Board notes that the issue of TDIU is inextricably intertwined with the service connection for a right foot disability and bilateral hearing loss claims being remanded (a grant of either claim would impact on the analysis of the TDIU claim). Therefore, consideration of the TDIU prior to October 4, 2012 issue must be deferred. The matters are REMANDED for the following: 1. Arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of any right foot disabilities, and specifically whether or not his right foot disabilities are directly related to (were incurred during) his service, or were caused or aggravated by his service-connected tinea pedis. The Veteran's record must be reviewed by the examiner in conjunction with this examination, and any tests or studies deemed necessary must be completed. On review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each right foot disability entity found or shown by the record during the pendency of the instant claim. (b) Identify the likely etiology for each right foot disability entity diagnosed. Is it at least as likely as not (a 50% or better probability) that such disability/ies was/were incurred during the Veteran's active service? The rationale should acknowledge (reflect consideration of) the Veteran's reports of self-treatment in service, and his statements noted on August 2012 VA foot examination (reporting. constant foot pain while wearing boots). (c) If a diagnosed right foot disability is found to not be directly related to the Veteran's service, opine further whether it is at least as likely as that such disability was caused or aggravated by (increased in severity due to) the Veteran's service-connected tinea pedis. [The opinion must address aggravation.] (d) If the opinion is that a service-connected disability did not cause, but aggravated, a right foot disability, the examiner should specify, to the extent possible, the degree of disability (pathology/impairment) that resulted from such aggravation. (e) If the opinion is that a right foot disability was not incurred in service or caused or aggravated by a service-connected disability, identify the etiology that is considered to be more likely (and explain why that is so). The examiner must include rationale with all opinions, citing to supporting factual data as deemed appropriate. 2. Arrange for the Veteran's record to be forwarded to an audiologist (other than the October 2020 examiner and January, March, and April 2021 addendum provider) for review and an advisory medical opinion regarding the likely etiology of his bilateral hearing loss. The entire record must be reviewed by the consulting provider. (a) Regarding right ear hearing loss, the provider should opine whether it is at least as likely as not (a 50% or better probability) that it is etiologically related to the Veteran's service. The examiner must acknowledge that his occupation in service (placing him on an aircraft carrier flight deck) likely exposed him to hazardous levels of noise in service). (b) Regarding left ear hearing loss, the provider should opine whether it is at least as likely as not that such hearing loss is etiologically related to the Veteran's service. The examiner should note that the Veteran is entitled to a legal presumption of soundness on entry to service with respect to a left ear hearing loss disability, and that any opinion indicting that a left ear hearing loss disability pre-existed service must be supported by clear and unmistakable evidence of pre-existence (which must be specifically identified if found to exist.). If a diagnosed left ear hearing loss disability is found to have clearly and unmistakably pre-existed the Veteran's service (and was manifested in service), opine further whether there is clear and unmistakable evidence that the disability was NOT aggravated (permanently worsened) during service (as the Veteran is entitled to a further presumption of aggravation in such circumstances). Identify any such evidence. The examiner should specifically address the significance, if any, of puretone threshold shifts from service enlistment examinations to the service separation examination (puretone threshold shifts in the 3000Hz and 4000Hz frequencies between the August and October 1985 audiometry). The provider should note that the October 2020 examiner indicated that the August 1985 audiometry was improperly transcribed (i.e. the left and right ear findings were transposed) and should express agreement or disagreement with this determination (with reason for such explained in detail). (c) If a right and/or left ear hearing loss disability is determined to be unrelated to service, identify the etiology for the hearing loss that is considered to be more likely (and explained why that is so). The provider must include rationale with all opinions, citing to supporting factual data and medical principles as deemed appropriate). 3. When the above development is completed, arrange for all further development necessary, and re-adjudicate the claim for a TDIU rating prior to October 4, 2012. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.