Citation Nr: 22017558 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-26 314 DATE: March 25, 2022 ORDER A compensable rating prior to November 4, 2021 and greater than 20 percent thereafter for bilateral hearing loss is denied. Service connection for an eye disability is denied. Service connection for a skin condition is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss prior to November 4, 2021 has manifested by hearing acuity of no worse than Level II in each ear. 2. The Veteran's bilateral hearing loss from November 4, 2021 has manifested by hearing acuity of no worse than Level IV hearing loss in his right ear and Level VI hearing in his left. 3. The evidence does not persuasively show that the Veteran's eye disability began during active service or is otherwise related to an in-service injury or disease. 4. The evidence does not persuasively show that the Veteran's skin condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to November 4, 2021 and greater than 20 percent thereafter for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 2. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a skin condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1954 to July 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision. The Veteran testified at a January 2021 Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript is of record. In February 2022, the Board sent the Veteran a letter presenting him with an opportunity for another hearing; however, the Board did not receive a response within the prescribed 30 days, therefore the Board will continue to adjudicate the claim. The Board remanded the above claims in a March 2021 decision to obtain medical examinations. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). At the outset, the Board notes evidence contained in the claims file documents that the Veteran's service department records were damaged and destroyed by fire. As such, the Veteran's service treatment records are unavailable. As to the unavailable service treatment records, the Board recognizes that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board notes, however, the law does not lower the legal standard for proving a claim for service connection, rather it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from the missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Bilateral Hearing Loss Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The Veteran was assigned a noncompensable rating for his bilateral hearing loss effective July 23, 2013. The Veteran's rating was increased to 10 percent effective October 12, 2015, and 20 percent effective April 30, 2018. The Veteran contends he is entitled to higher ratings. Prior to November 4, 2021 The Veteran underwent a VA examination in August 2018. This examination revealed the following: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 50 55 70 52 LEFT 25 35 50 55 41 Speech recognition was 90 percent in the right ear and 90 percent in the left. Applying the results of the August 2018 audiological examination to Table VI reflects that the Veteran has Level II hearing loss bilaterally. These results when applied to Table VII result in a noncompensable disability rating. 38 C.F.R. § 4.85. The Board notes that the Veteran submitted a private audiological examination dated June 2019. However, the audiometric test results are illegible and cannot be used to determine the Veteran's level of hearing loss. Further, the Veteran testified in his January 2021 hearing that his hearing has gotten worse since the August 2018 examination. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the testimony regarding the Veteran's worsening hearing loss. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the above audiometric test results and a mechanical application of the rating criteria, the Board finds that the Veteran is not entitled to a compensable rating for his bilateral hearing loss prior to November 4, 2021. From November 4, 2021 The Veteran underwent another VA examination in November 2021. This examination revealed the following: HERTZ 1000 2000 3000 4000 Avg RIGHT 45 45 60 75 56.25 LEFT 45 75 70 90 70 The examiner noted that the Veteran was unable to complete the speech recognition test therefore speech recognition levels were not obtained. Applying the results of the October 2015 audiological examination to Table VIA reflects that the Veteran has Level IV hearing loss in the right ear and Level VI hearing loss in the left. These results when applied to Table VII result in a 20 percent disability rating. 38 C.F.R. § 4.85. Based on the above audiometric test results and a mechanical application of the rating criteria, the Board finds that the Veteran is not entitled to a rating greater than 20 percent for his bilateral hearing loss since November 4, 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Eye Disability Private medical records dated October 2018 note a diagnosis of a detached retina. Therefore, the Board finds that the Veteran has satisfied the first element of a service connection claim, a current disability. The Veteran testified in his January 2021 hearing that he was exposed to tear gas in training and that caused his eye disability. The Board finds this testimony credible and therefore the second element of a service connection claim has been met. The Veteran underwent a VA examination in September 2021 to determine the etiology of his eye disability. The examiner noted the Veteran to have retinal detachment of the right eye and the presence of an intraocular lens in the left eye. The examiner found that the diagnosed eye disabilities were less likely than not incurred in or caused by the claimed in-service injury, event or illness. Specifically, the examiner noted that any exposure to tear gas, as claimed by the Veteran, could cause injury to the front of the eye. It would not enter the eye and form the cataracts that were the case of the Veteran's subsequent retinal detachment over 60 years after the Veteran's service. The Board acknowledges the Veteran's own assertions in support of his claim. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiologies in this matter. Furthermore, neither the Veteran nor his representative has presented or identified any additional medical opinion or other competent evidence that supports the Veteran's claims. Therefore, the Board finds that the evidence does not persuasively show that service connection is warranted. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Skin Disability The Veteran contends that he has a skin condition that is the result of his active duty service. The Veteran submitted private treatment records dated April 2021 that noted a diagnosis of vitiligo. Therefore, the Board finds the first element of a service connection claim to have been met. Regarding an in-service incurrence, at his January 2021 hearing the Veteran testified that he had a skin rash that began in-service and was on and off ever since. As the Veteran is competent to report symptoms, the Board finds this lay testimony sufficient to satisfy the second element of a service connection claim. The Veteran underwent a VA examination in August 2021 to determine the etiology of the Veteran's skin condition. The examiner also noted a diagnosis of vitiligo just as in the Veteran's medical records. The examiner ultimately concluded that it was less likely than not that the Veteran's skin condition was incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner found that the Veteran incurred burns on his arms bilaterally during service that required skin grafts. These burns were noted to be well-healed. In response to the Veteran's claims of a rash that started in-service, the examiner noted that the psoriasis was not visible on exam or in the claims file. Further, the examiner noted that regarding the vitiligo, that this condition is genetic and had not occurred until approximately 50 years after the Veteran's service, therefore, it was not the result of the Veteran's service. There is no competent medical opinion to refute this conclusion or otherwise link the Veteran's claimed skin condition to his service. Although the Veteran is competent to report observable complaints, he is not competent to provide a diagnosis or etiology to account for such complaints. Rather this question requires medical expertise due to the complex nature of the disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As no causal connection between the Veteran's claimed disabilities and his military service has been established service connection is not warranted. In sum, while the Veteran believes his skin disability had its onset during service, or is otherwise related to service, the Board reiterates that the evidence does not persuasively show a nexus between the Veteran's service and his skin condition exists. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.