Citation Nr: A25041265 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240726-460591 DATE: May 6, 2025 ORDER Service connection for hemorrhoids is denied. Service connection for right ear hearing loss is denied. An initial compensable rating for left ear hearing loss is denied. An initial compensable rating for eczema (chest) is denied. REMANDED Service connection for an anxiety condition, mental disorder, anger issues, stress disorder, is remanded. Service connection for vision impairment is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had hemorrhoids at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran has had right ear hearing loss per VA standards at any time during or approximate to the pendency of the claim. 3. The Veteran's left ear hearing has been manifested by hearing acuity of no worse than Level III. 4. The Veteran's eczema (chest) is not manifested by 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; and does not require intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. CONCLUSIONS OF LAW 1. The criteria for service connection for hemorrhoids are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for an initial compensable disability rating for eczema (chest) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 2016 to June 2020. The rating decision on appeal concerning the claim for service connection for vision impairment was issued in September 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In November 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of rating decisions issued in March 2023 (pertinent to the claim for service connection for hemorrhoids) and September 2023 (pertinent to the claims for service connection for right ear hearing loss and anxiety condition, mental disorder, anger issues, stress disorder and the claims for increased ratings). In March 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2023 and September 2023 rating decisions. In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Given this procedural history, the Board may only consider the evidence of record at the time of the September 2023 AOJ decision on appeal concerning the claim for service connection for vision impairment. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Regarding the remaining claims, the Board may only consider the evidence of record at the time of the March 2023 (pertinent to the claim for service connection for hemorrhoids) and September 2023 (pertinent to the claims for service connection for right ear hearing loss and anxiety condition, mental disorder, anger issues, stress disorder and the claims for increased ratings) AOJ decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decisions that were subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test 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). For the purposes of applying the law 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, or 4000 Hertz (specified frequencies) 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. Certain chronic diseases, to include other organic diseases of the nervous system like hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Service connection for hemorrhoids. The Veteran seeks service connection for hemorrhoids. He asserts that the food he had to eat in service did not sit well with his stomach and the cramped quarters gave him limited space and did not allow him to obtain an appropriate poster. He also reports that he would occasionally have rectal bleeding along with the hemorrhoids. See VA Form 21-526EZ received October 29, 2022. The Veteran also contends that he has had rectal discomfort since service due to lousy facilities and that he is always bleeding. See March 2024 HLR Informal Conference Worksheet. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of hemorrhoids and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The medical evidence reviewed by the Board within the applicable appeal window pertinent to this claim, which is evidence of record at the time the March 2023 AOJ rating decision was issued, consists exclusively of VA treatment records. They do not contain reference to complaint of, or treatment for, hemorrhoids, rectal discomfort, or rectal bleeding, and in fact, the Veteran denied rectal bleeding during VA treatment in August 2020, two months after his discharge from active duty service. While the Veteran is competent to report rectal bleeding and rectal discomfort, and he believes there is a current diagnosis of hemorrhoids, he is not competent to attribute any reports of rectal bleeding or discomfort to a diagnosis of hemorrhoids, or to provide a diagnosis of hemorrhoids. The issue is medically complex and requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the weight of the evidence does not support the claim for service connection for hemorrhoids. The evidence in this case is not in approximate balance to warrant application of the benefit-of-the-doubt rule. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for right ear hearing loss. The Veteran seeks service connection for right ear hearing loss. He reports that his hearing has declining and that his office was right under the flight deck where jets would take off. See VA Form 21-526EZ received June 1, 2020. The March 2024 rating decision on appeal made a favorable finding that the Veteran had hazardous noise exposure during military service. The Board is bound by this finding. See 38 C.F.R. § 3.104(c). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to the conceded in-service exposure to hazardous noise. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss per VA standards and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). More specifically, the medical evidence reviewed by the Board within the applicable appeal window pertinent to this claim, which is evidence of record at the time the September 2023 AOJ rating decision was issued, consists exclusively of VA treatment records that do not contain any audiometric testing. Moreover, during the July 2020 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ), speech audiometry revealed speech recognition ability of 94 percent in the right ear and pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 15 25 While the Veteran believes he has current right ear hearing loss, he is not competent to provide a diagnosis of hearing loss for VA compensation purposes in this case. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the weight of the evidence does not support the claim for service connection for right ear hearing loss. The evidence in this case is not in approximate balance to warrant application of the benefit-of-the-doubt rule. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Claims 1. An initial compensable rating for left ear hearing loss. The Veteran is seeking a higher initial rating for his left ear hearing loss, asserting that his hearing has worsened. See March 2024 HLR Informal Conference Worksheet. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The medical evidence reviewed by the Board within the applicable appeal window pertinent to this claim, which is evidence of record at the time the September 2023 AOJ rating decision was issued, consists exclusively of VA treatment records that do not contain any audiometric testing. A July 2020 VA hearing loss and tinnitus DBQ reveals that the Veteran reported that he occasionally cannot make out what people are saying even though they are right next to him. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: July 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 15 25 1705 94 LEFT 10 15 20 20 16.25 76 Assigning a numeric designation of Level I for the non-service-connected right ear and applying the results to Table VI, the findings yield a numeric designation of Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, an initial compensable rating for the Veteran's left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report that his hearing has worsened and that he occasionally has difficulty making out what people are saying. The Veteran is competent to report difficulty 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). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to an initial compensable rating for left ear hearing loss. As the most probative evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. An initial compensable rating for eczema (chest). The Veteran is seeking a higher initial rating for eczema (chest) and reports that he is itching constantly. See March 2024 HLR Informal Conference Worksheet. The Veteran's eczema (chest) is rated under Diagnostic Code 7806 for dermatitis or eczema, which provides a General Rating Formula for the Skin. 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, 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 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, 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. Here, the evidence of record demonstrates that the predominant disability is eczema of the chest, since VA examinations indicate that the skin condition does not cause scarring or disfigurement of the head, face, or neck. See VA skin diseases DBQs dated July 2020 and December 2022. The medical evidence reviewed by the Board within the applicable appeal window pertinent to this claim, which is evidence of record at the time the September 2023 AOJ rating decision was issued, consists exclusively of VA treatment records that do not contain any dermatologic treatment or treatment associated with the service-connected eczema (chest). The Board finds that the evidence of record persuasively weighs against the assignment of an initial compensable evaluation because the Veteran's eczema (chest) does not more nearly approximate 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 required for a total duration of less than 6 weeks over the past 12-month period. Rather, the July 2020 VA examiner reported in an August 2020 addendum that at the time of the examination, the Veteran had no visible characteristics of eczema and the December 2022 VA examiner reported a scaly rash and itching to the chest area, but this condition did not affect any exposed area and affected less than five percent of total body area. Both VA examiners indicated that only topical medication rather than systemic medication had been used to treat the condition. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, described as ashy, itchy, dry, and flakey skin and a scaly rash and itching to chest area, and these reports are credible. Jandreau, 492 F.3d at 1377. However, the Veteran does not assert, and medical treatment records do not show, that the eczema (chest) more nearly approximates the criteria in the next higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that the eczema (chest) would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. Moreover, the Court held in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), that when a condition is specifically listed in the rating schedule, as it is in this case, it may not be rated by analogy. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating...may be assigned only where the service-connected condition is 'unlisted.'"). In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for an initial compensable rating for eczema (chest). As the evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th at 776. REASONS FOR REMAND 1. Service connection for anxiety condition, mental disorder, anger issues, stress disorder is remanded. This claim is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. The AOJ obtained a VA mental disorders DBQ in July 2020 that determined the Veteran did not have and had never been diagnosed with a mental disorder. However, VA treatment records associated with the record prior to the rating decision on appeal include diagnoses of adjustment disorder with mixed anxiety and depressed mood and adjustment disorder with depressive symptoms. Remand is needed for an updated VA examination with addendum opinion to address these diagnoses, as well as to address the Veteran's assertion raised in a VA Form 21-526EZ received April 22, 2022, asserting that he had an anxiety condition secondary to his service-connected obstructive sleep apnea. 2. Service connection for vision impairment is remanded. This claim is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. The AOJ obtained a VA eye conditions DBQ in July 2020 that determined the Veteran did not have and had never been diagnosed with an eye condition. However, VA treatment records associated with the record prior to the rating decision on appeal include diagnoses of dry eye syndrome, peripheral retinal changes, and astigmatism. Remand is needed for an updated VA examination with addendum opinion to address these diagnoses. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination. All indicated tests should be conducted and the results reported. After review of the claims file and examination of the Veteran, the examiner is asked to indicate whether it is at least as likely as not that any of the Veteran's diagnosed mental disorders found on examination, as well as the previously diagnosed adjustment disorder with mixed anxiety and depressed mood and/or adjustment disorder with depressive symptoms, manifested in service or are otherwise related to service or are secondary to the service-connected obstructive sleep apnea. The examiner should explain why or why not and specifically address the in-service treatment related to the Veteran's mental health. 2. Schedule the Veteran for a VA eye examination. All indicated tests should be conducted and the results reported. After review of the claims file and examination of the Veteran, the examiner is asked to indicate whether it is at least as likely as not that any of the Veteran's diagnosed eye conditions found on examination, as well as the previously diagnosed dry eye syndrome, peripheral retinal changes, and/or astigmatism, manifested in service or are otherwise related to service. The examiner should explain why or why not and specifically address the in-service treatment related to the Veteran's eyes. If any current diagnoses are refractive errors, the examiner should state such. M. C. WILSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.