Citation Nr: 1754177
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 08-33 969 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for a lumbar spine disorder.

3. Entitlement to service connection for a macular degeneration of the right eye, to include as secondary to the service-connected macular degeneration of the left eye.

4. Entitlement to service connection for a left knee disorder.

5. Entitlement to an initial compensable rating effective prior to November 21, 2015, and a rating in excess of 10 percent, effective from November 21, 2015 for actinic keratosis, solar lentigo with scar.

6. Entitlement to an initial compensable rating effective prior to February 2, 2014, a rating in excess of 30 percent effective from February 2, 2014, and a rating in excess of 60 percent effective from November 21, 2015, for seborrheic dermatitis.

REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

D.M. Casula, Counsel

INTRODUCTION

The Veteran’s DD Form 214 shows that he had active service in the U.S. Navy from October 1985 to July 1991.

This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied service connection for bilateral hearing loss. This matter also comes before the Board from a February 2011 rating decision in which the RO granted service connection for seborrheic dermatitis and for actinic keratosis, and assigned 0 percent (noncompensable) ratings, effective from December 3, 2007, for each. This matter further comes before the Board from a December 2013 rating decision in which the RO denied service connection for DDD of the lumbar spine; a November 2014 rating decision in which the RO denied service connection for macular degeneration, right eye; and a July 2015 rating decision in which the RO denied service connection for a left knee condition.

In March 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed at the Board.

In February 2012, the Board remanded the issue of entitlement to service connection for bilateral hearing loss for further development.

In July 2013, the Board sent the Veteran a letter notifying him that the Veterans Law Judge who conducted his hearing had retired from the Board. In August 2013, the Veteran indicated he wished to be scheduled for another hearing.

In September 2013, the Board remanded this matter in order to schedule him for a videoconference hearing at the RO, as well as for a statement of the case (SOC) to be issued on the issues of entitlement to compensable ratings for seborrheic dermatitis and actinic keratosis.

By September 2015 rating decision, the RO granted a 30 percent rating for seborrheic dermatitis, effective from February 2, 2014. By February 2016 rating decision, the RO granted a 10 percent rating for actinic keratosis, solar lentigo with scar, effective from November 21, 2015; and granted a 60 percent rating for seborrheic dermatitis, effective from November 21, 2015.

In November 2016, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge.

The issue of entitlement to service connection for psoriasis was raised by the Veteran at the hearing in November 2016, after which he filed a formal claim. In a letter dated in February 2017, the Agency of Original Jurisdiction (AOJ) notified the Veteran that they were working on his claim for psoriasis as secondary to the service-connected seborrheic dermatitis. As the claim for service connection for psoriasis is currently being adjudicated by the AOJ, the Board does not have jurisdiction over it.

The Board also notes that the claim for service connection for psoriatic arthritis has been addressed by the AOJ and the Veteran has filed a notice of disagreement, but a statement of the case (SOC) has yet to be issued. The Board’s review of the claims file reveals that the AOJ is still taking action on this issue. As such, the Board will not accept jurisdiction over this issue at this time.

The issues of entitlement to service connection for bilateral hearing loss, a lumbar spine disorder, macular degeneration of the right eye, and a left knee disorder, and entitlement to higher ratings for seborrheic dermatitis, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. Effective prior to November 21, 2015, the Veteran’s actinic keratosis was manifested by recurrent lesions treated with cryotherapy, without any of the eight characteristics of disfigurement of the head, face, or neck, and a scar on the jawline that was tender but not disabling.

2. Effective from November 21, 2015, the Veteran’s actinic keratosis has been manifested by no more than was manifested by recurrent lesions treated with cryotherapy, without any of the eight characteristics of disfigurement of the head, face, or neck, and a scar on the jawline that was tender but not disabling.

CONCLUSIONS OF LAW

1. The criteria for a 10 percent rating, effective prior to November 21, 2015, for actinic keratosis have been met. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.118, DC 7800, 7819 (2016).

2. The criteria for a rating in excess of 10 percent, effective from November 21, 2015, for actinic keratosis, have not been met. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.118, DC 7800, 7819 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided in the instant document, VA provided adequate notice in letters sent to the Veteran in January 2008 and May 2011.

Additionally, in November 2016, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned stated the issue on appeal, and information was also solicited regarding the severity of the Veteran’s skin disorder as well as any recent treatment received. Nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran’s claims. The undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board may proceed to adjudicate the claim based on the current record.

VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained all identified and available service and post-service treatment records, and VA examinations were conducted in July 2010, February 2012, and January 2016. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained, and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Also, neither the Veteran nor his representative raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claim. Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Factual Background

On a VA examination in July 2010, the Veteran reported he was first treated for actinic keratosis in July 2004, but could not recall any additional treatment for this since then. He reported symptoms included itching and burning on the forehead. There were no systemic symptoms. The VA examiner noted that at the time of the examination, no actinic keratosis was noted on the face, neck, ears, or forearms.

A June 2011 VA dermatology note revealed that the Veteran was seen for evaluation of brown lesions on the face. Objective examination revealed his right and left cheeks had 5mm waxy, light-brown papules with pseudocysts seen with dermatoscope, and his temples had several crusted erythematous macules. The assessment was actinic keratosis, and LN2 (liquid nitrogen or cryotherapy) was applied to 4 areas.

On a VA examination in February 2012, it was noted that the Veteran had actinic keratosis, diagnosed in 1987. Examination revealed that no skin conditions were causing scarring or disfigurement of the face, and he had no systemic manifestations due to any skin disease. He had not been treated with oral or topical medications in the past 12 months for a skin condition. He had scattered erythematous macules with adherent scale on both temples and left ear, consistent with actinic keratosis. His skin conditions did not impact his ability to work.

Private treatment records showed that in January 2013, the Veteran was seen for a rash, and examination showed actinic keratosis on the entire face, a scaly/crusty reddish pink lesion, and neoplasm of uncertain behavior on the right jawline, described as 1 centimeter darkly pigmented patch. The Veteran underwent cryotherapy for actinic keratosis, and a shave biopsy for the neoplasm on the right jaw. In June 2014, the Veteran was seen for actinic keratosis on the left anterior ear and a 2 mm. by 4 mm. scaly, crusty reddish pink lesion, and again underwent cryotherapy for this skin condition. .

On a VA DBQ examination in January 2016, it was noted that the Veteran’s skin conditions included actinic keratosis diagnosed in 1987, and solar lentigo of the right jawline, diagnosed in 2013, that was considered a progression of the actinic keratosis. He reported that during active duty in 1987 and 1989 he was treated with liquid nitrogen for actinic keratoses on his face, ears, and nose, and he continued to require treatment with liquid nitrogen for many additional actinic keratoses on his face, ears, neck, and arms, approximately every 6 months since that time. He had an abnormal skin lesion removed from his right jaw line in 2013, which was a solar lentigo. It was noted that currently he had actinic keratosis and reported chronic plaques on his right calf and umbilicus. It was noted that he had undergone liquid nitrogen treatment to actinic keratosis 6 months prior. Examination revealed actinic keratoses, including a few scattered raised white lesions on the ears and cheeks, affecting less than 1 percent of his total body area, and less than 1 percent of his total exposed body area. The examiner noted that the Veteran’s skin condition impacted his ability to work, noting that employment tasks requiring working outdoors and sun exposure would be limited due to his actinic keratosis condition.

In a VA DBQ scar examination in January 2016, it was noted that the Veteran had an abnormal skin lesion removed from his right jaw line in 2013, which was a solar lentigo, which was a progression of the service-connected actinic keratoses. It was noted that he had a scar on the right jawline from the solar lentigo excision. Examination revealed the scar was not painful or unstable; the length and width was 1 centimeter x 0.8 centimeters; there was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue; and there was abnormal pigmentation of the scar. The approximate total area of the head, face, and neck with abnormal pigmentation was 0.8 square centimeters, and there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scar did not result in limitation of function, or impact the Veteran’s ability to work.

In November 2016, the Veteran testified that he had actinic keratosis on his face, nose, back, and arms, and the symptoms included bloody scabs on his face. He testified he had “something removed” that left a scar on his right jaw line, and that the scar was tender when he shaved. He also testified he had actinic keratosis in his groin area, but that the examiners never looked there and just took his word for it.

III. Analysis

Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran’s disability to determine if the assignment of separate ratings for separate periods of time, a practice known as “staged” ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran’s service-connected actinic keratosis, solar lentigo, with scar, was initially assigned a non-compensable rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7819, effective prior to November 21, 2015, and was assigned a 10 percent rating, effective from November 21, 2015, under DC 7800.

In considering whether a compensable rating is warranted for the Veteran’s actinic keratosis, prior to November 21, 2015, the Board notes that DC 7819 directs that benign skin neoplasms be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or impairment of function. The Board also notes that the rating criteria for scars under DCs 7800, 7801, 7802, 7803, 7804, and 7805 were revised, effective October 23, 2008. 73 Fed. Reg. 54708-12 (Sept. 23, 2008). These changes, however, apply only to claims received by VA on or after October 23, 2008, or to claims where a veteran requests review under the new criteria. Here, the claim was filed in December 2007, and no such request for review under the new criteria has been made. Additionally, regulatory changes were made in 2012, but these changes involve only a correction to the applicability date of the 2008 regulations, and do not involve any substantive changes. Thus, they are not pertinent to the appeal, as the revised 2008 regulations do not apply to the Veteran.

Under DCs 7819 and 7800, ratings for scars that impact the head, face, or neck are based on the number of characteristics of disfigurement present. The eight characteristics of disfigurement, as listed in Note 1, include: (1) scar five or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper- pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurate and inflexible in an area exceeding six square inches (39 square centimeters). A rating of 10 percent requires one characteristic of disfigurement. A rating of 30 percent is warranted where there are two or three characteristics of disfigurement. Id.

Review of the record both prior and subsequent to November 21, 2015, however, shows that the Veteran’s service-connected actinic keratosis has been manifested by intermittent but recurrent lesions treated with cryotherapy, without any of the eight characteristics of disfigurement of the head, face, or neck, and a scar on the jawline that was tender but not disabling. Thus, no increased evaluation is warranted for either time period.

However, the Board must consider other potentially applicable diagnostic codes.
See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Under DC 7804, a 10 percent rating is warranted throughout the period on appeal, based on a tender scar of the right jawline. That is the maximum rating available, thus no higher evaluation is warranted under DC 7804. Additionally, DCs 7802, 7803, do not provide for an evaluation in excess of 10- percent. 38 C.F.R. § 4.118, DCs 7802, 7803 (2007). Furthermore, the scar is not located anywhere other than the head, face, or neck and does not cause limitation of function of an affected part. 38 C.F.R. § 4.118, DCs 7801, 7805 (2007). The remaining DCs for skin are inapplicable to the Veteran’s service-connected actinic keratosis. See 38 C.F.R. § 4.118, DCs 7807-18, 7820-33 (2017)

Accordingly, in view of the foregoing, the competent evidence of record supports the assignment of an initial 10 percent, prior to November 21, 2015, under Diagnostic Code 7804, for the service-connected actinic keratosis, manifested by a tender scar of the jawline. Additionally, the Board concludes that the preponderance of the competent evidence of record is against the grant of a 10 percent rating for the service-connected actinic keratosis, either prior to, or effective from, November 21, 2015. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board also notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017).

ORDER

Effective prior to November 21, 2015, a 10 percent rating for actinic keratosis, solar lentigo with scar, is granted, subject to the laws and regulations governing the payment of monetary benefits.

A rating in excess of 10 percent, effective from November 21, 2015 for actinic keratosis, solar lentigo with scar, is denied.

REMAND

1. Bilateral Hearing Loss

Remand is required to obtain an adequate examination and opinion. Where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran contends he was exposed to excessive noise in service as a Hospital Corpsman in the Navy, and, as a result, currently has bilateral hearing loss.

Service treatment records (STRs) showed that on the Veteran’s enlistment examination in June 1985, he responded “no” as to having, or previously having had, hearing loss. An audiometric evaluation revealed thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, 4000, and 6000 hertz (Hz) as follows: 15, 10, 10, 15, 20, and 20, and for the left ear: 20, 10, 5, 15, 30, and 30. It was noted that he had hearing loss in the left ear, but was deemed acceptable for enlistment, with a physical profile of H2 for his hearing and ears. In October 1985, he underwent audiometric evaluation in order to establish a reference point “prior to initial duty in hazardous noise areas”, which revealed thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, 4000, and 6000 Hz as follows: 10, 5, 5, 15, 20, and 25, and for the left ear, as follows: 15, 15, 5, 10, 40, and 30. In June 1989 he complained of an ear ache, and the impression was probable labyrinthitis.

STRs further show that on an annual examination in June 1990, the Veteran responded “no” as to having, or having had, hearing loss, and an audiometric evaluation showed thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, 4000, and 6000 Hz as follows: 5, 5, 5, 20, 15, and 30, and in the left ear: 15, 10, 5, 15, 20, and 20. High frequency hearing loss in both ears was noted. In July 1990, it was noted that an audiological evaluation revealed the Veteran’s hearing in both ears was within normal limits from 250 Hertz – 4000 Hertz, with a mild hearing loss from 6000 Hertz – 8000 Hertz. The assessment was mild high frequency hearing loss. He was advised to use HPDs (hearing protection devices) when needed. On a separation examination in June 1991, he responded “yes” as to having, or having had, hearing loss. An audiometric evaluation at separation revealed thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, 4000, and 6000 Hz as follows: 15, 10, 5, 20, 20, and 40, and for the left ear: 20, 0, 5, 20, 25, and 25. It was noted that he had high frequency hearing loss in both ears,

On a VA examination in February 2012, hearing loss for VA purposes was diagnosed. The Veteran reported he was a Corpsman in the Navy and exposed to gunfire in basic training, with no ear protection. He denied pre-military occupational noise exposure and indicated that post-military he worked as a janitor and denied noise exposure at work. He denied noisy hobbies.

In a statement dated in February 2012, the Veteran reported he was treated for many ear aches in service; that he worked near and around a helicopter land area at the hospital; that his hearing loss was noted on his initial hearing test and on his discharge hearing test; that his in-service medical records were incomplete; and that he thought his hearing loss and tinnitus were linked because the only time he flew in a plane was in service and it made his head feel like it was going to explode.

On a VA examination addendum in March 2012, the examiner noted that the entrance examination in June 1985 showed hearing within normal limits for rating purposes in the left ear and normal hearing in the right ear; the separation examination in June 1991 showed hearing within normal limits for rating purposes, bilaterally, and no significant shifts in hearing during service. The examiner opined that since there was no documentation of tinnitus in the STRs and based on the Veteran’s history of in-service noise exposure, it was at least as likely as not that his tinnitus was related to in-service noise exposure.

At a hearing in November 2016, the Veteran testified he had bad ear aches in service, and that when taking a commercial flight he felt like his head was going to explode. He testified that in service he had hearing loss, and was given a hearing test, and that after service his hearing got progressively worse. He reported that after service he worked in air conditioning service and as a janitor and had no noise exposure like what he experienced in service.

In reviewing the claim, the Board notes that there is a current bilateral hearing loss disability under VA regulations as noted in the 2012 VA examination. See 38 C.F.R. § 3.385. The Board also finds that there is noise exposure in service. The Veteran has provided competent testimony regarding noise exposure in service as a Hospital Corpsman. See 38 U.S.C.A. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, during service, he underwent a reference audiogram prior to initial duty in a hazardous noise area, and later, during service, was advised to wear hearing protection devices as needed. Based on the foregoing, the Board finds that there was in-service noise exposure.

What is missing is competent medical evidence of a link between bilateral hearing loss and noise exposure in service. The 2012 VA examination did not provide an etiological opinion regarding hearing loss, at least not explicitly. Thus, another opinion must be obtained.

2. Lumbar Spine Disorder

Remand is required to obtain an adequate VA examination. Where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

The Veteran contends that his current lumbar spine condition had an onset in service. At the November 2016 Board hearing, the Veteran testified that he hurt his back while in service. He testified that for the last 15 years his back pain would come and go, but that now he had pain all the time. He reported he was first treated for his back in the 1990s, a couple of years after service.

STRs show that in August 1987, the Veteran reported he had pain the lower thigh area. It was noted that the onset of the pain was while lifting weights, and that the pain was present in the region of the left thigh. Examination of the back showed full range of motion but pain with forward flexion of the lower back and radiating down the left leg. X-rays of the lumbar sacral spine were normal. The impression was mechanical low back pain versus L5-S1 herniated nucleus pulposus. Another STR noted that he returned to work, but had a recurrence of the pain.

VA treatment records show that the Veteran received chiropractic treatment for his lumbar spine in 2013. An x-ray report from July 2013 showed moderate to severe degenerative disc disease at L5-S1, mild degenerative disc disease at L3-4, and mild arthritic disease of the right sacroiliac joint.

On a VA examination in November 2013, the diagnosis was degenerative disc disease of the lumbar spine. The Veteran reported having low back pain that began gradually, approximately 24 years prior, and that the pain had been increasing recently. He reported he had seen a chiropractor and that the pain went down his left leg at times. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner noted review of the entire claims file and that there was no mention of any lumbar conditions or treatments while in service. The examiner could not, with a history of psoriatic arthritis as well, say that the Veteran’s back conditions are at least as likely to be from any back condition in service. Accordingly, another opinion is warranted.

3. Macular Degeneration of the Right Eye

Remand is required to obtain an adequate opinion. Where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).

The Veteran contends that his macular degeneration of the right eye is related to service, claiming he started having right eye problems at that time. He has also contended that his macular degeneration of the right eye is related to his service-connected macular degeneration of the left eye.

On a VA examination in May 2014, the diagnoses included bilateral macular degeneration, exudative left eye, non-exudative right eye, diagnosed in 1996; longstanding bilateral myelinated nerve fibers; and longstanding bilateral dry eyes. It was noted that the Veteran had a concussion it the late 1980s but no lasting visual symptoms. The examiner indicated that the macular degeneration in the right eye, bilateral dry eyes, and bilateral myelinated nerve fibers were new and separate diagnoses from the service-connected macular degeneration in the left eye.

In the September 2017 informal hearing presentation, the Veteran’s representative contended that the Veteran’s macular degeneration of the right eye was caused by events in service, to include as secondary to his service-connected disability of exudative macular degeneration, left eye. The Veteran’s representative also noted that on the VA examination in May 2014, macular degeneration was shown for both eyes with the right eye diagnosis being more recent and that the Veteran sustained a concussion in the late 1980’s while in service and had myelinated nerve fiber layers in both eyes. The representative noted that the VA examiner stated that the macular degeneration in the right eye was a new and separate diagnosis from the service-connected macular degeneration in the left eye, but provided no medical opinion regarding the etiology of the right eye macular degeneration. The representative requested a thorough medical opinion with rationale regarding whether a right eye condition was less likely as not caused by events in service or as secondary to his left eye condition.

The Board notes that although the May 2014 VA examiner intimated that the Veteran’s macular degeneration in the right eye was not related to the service-connected left eye, the VA examiner did not express a definitive opinion, and also did not address whether the Veteran’s service-connected left eye disability could have aggravated his macular degeneration in the right eye. The Board therefore concludes that another VA opinion is warranted.

4. Left Knee Condition

Remand is required to obtain a VA examination and opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.
§ 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.
§ 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R.
§ 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).

Here, in a July 2015 notice of disagreement, the Veteran reported that during service, in 1988 or 1989, during karate practice, he injured his left knee (lateral meniscus) when something snapped in the area of the left lateral and back part of the knee, and it immediately immobilized him. He reported that his leg swelled up and bled underneath the skin, and he had a giant hematoma in the back of his left knee and walked with a limp for a few weeks. He reported that at that time he was working as a Hospital Corpsman at the Naval hospital and had one of the doctors he worked with look at his knee. He reported that his left knee had bothered him ever since that happened. STRs showed that in September 1987, the Veteran was seen for complaints of left posterior patellar pain beginning approximately one month prior while weightlifting. The assessment was unresolved muscle strain versus mild tendonitis hamstrings. VA treatment records showed that in May 2015, the Veteran was noted to have osteoarthritis of the left knee, and underwent left knee lateral meniscectomy. Thus, there is a current diagnosis of a left knee disability. Additionally, there is an in-service event. Finally, the Veteran asserts knee symptoms since discharge, thus there is and indicating that there is an association between the two. Thus, an examination is required.

5. Seborrheic Dermatitis

The Board notes that at the November 2016 hearing, the Veteran asserted he had psoriasis secondary to his service-connected seborrheic dermatitis. Thereafter, he filed a formal claim for service connection. In a letter dated in February 2017, the AOJ advised the Veteran they were working on his claim for service connection for psoriasis as secondary to the service-connected seborrheic dermatitis. In December 2016, the Veteran underwent a VA examination which not only addressed the etiology of his psoriasis (which was found to be related, and part of, his seborrheic dermatitis); it also addressed the current severity of his psoriasis and seborrheic dermatitis. Thus, this VA examination is relevant to the seborrheic dermatitis issue on appeal, but there is no indication that the AOJ reviewed this VA DBQ and/or issued a supplemental statement of the case (SSOC), nor has the Veteran waived review of this specific document by the AOJ and/or indicated that this evidence could be considered by the Board in the first instance. 38 C.F.R. § 20.1304. In light of the potential relationship between the service-connected seborrheic dermatitis and the Veteran’s psoriasis, as well as the fact that there has been no waiver of initial AOJ consideration of the December 2016 VA DBQ, the claim for higher ratings for seborrheic dermatitis must be remanded in order for the AOJ to adjudicate the claim for service connection for psoriasis, as well as to consider the December 2016 VA DBQ as it may pertain to the current severity of the Veteran’s seborrheic dermatitis.

6. Service Records

Received from the Veteran in December 2007 was an Application for Compensation (VA Form 21-526), in which he indicated that he entered active duty service on June 21, 1995. In January 2008, the RO made a request to the National Personnel Records Center (NPRC) for the Veteran’s complete medical/dental record (SMRs) (service medical records), and in this request listed June 21, 1985 as the Veteran’s service entrance date. In February 2008, the NPRC responded that the requested records had been mailed. Subsequently, the Veteran’s service entrance date has been listed in various documents as June 21, 1985. In August 2017, however, the Veteran’s vocational rehabilitation records were associated with the claims folder, which included a copy of the Veteran’s DD Form 214, which listed the date that the Veteran entered into active duty as October 1, 1985. It therefore appears that October 1985 is the correct date of the Veteran’s entrance into service, however, an attempt to obtain his service personnel records should be made. Additionally, the Board notes that the Veteran has contended on several there are service treatment records missing from the claims folder. While a review of the STRs of record appear to show a complete set, in light of the Veteran’s contentions, an attempt should be made to see if there are any outstanding STRs.

Accordingly, the case is REMANDED for the following action:

1. Contact the NPRC and request a copy of any outstanding service treatment records as well as any service personnel records for the Veteran. If the NPRC is unable to locate any additional STRs or personnel records, then a request should be made to any other appropriate alternative sources. Negative replies should be requested. If the search for these records yields negative results, this should be noted in the claims folder and action should be taken in accordance with 38 C.F.R. § 3.159 (e).

2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative.

3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of his hearing loss from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss had its onset in service or is causally related to noise exposure in service. The examiner must address the relevant STRs dated June 1985, October 1985, June 1989, June 1990, July 1990, June 1991, and the February 2012 VA examination with addendum.

5. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of his lumbar spine disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed low back disorder had an onset in or was otherwise caused by the Veteran’s military service. The examiner must address the following: 1) the Veteran’s assertions of hurting his back in service and continuing symptoms; 2) STRs dated in August 1987; 3) VA records dated in 2013; and 4) a November 2013 VA examination.

6. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of his right eye macular degeneration from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided.

First, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye macular degeneration had an onset in or was otherwise caused by service.

Second, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye macular degeneration was caused or aggravated by his service-connected left eye disability. The examiner must address the Veteran’s lay statements and the May 2014 VA examination.

7. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of his left knee disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided.

First, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that a left knee condition had an onset in, or was otherwise caused by, the Veteran’s military service. The examiner must address the Veteran’s assertions of hurting his knee in service and continuing symptoms and the STRs dated in September 1987.

8. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

9. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).

10. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, and after the claim for service connection for psoriasis has been adjudicated, the claims must be readjudicated. If the claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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