Citation Nr: 18123931
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 09-22 343
DATE:	August 6, 2018
ORDER
The request to reopen a claim for hypertension, and the request to reopen is dismissed.
Entitlement to service connection for migraines is dismissed.
Entitlement to service connection for short term memory loss is dismissed.
Entitlement to a rating in excess of 30 percent for actinic keratosis is dismissed.
Entitlement to a compensable rating for bilateral hearing loss is denied.
Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is granted.
Entitlement to a 30 percent disability rating for suppurative hidradenitis is granted.
REMANDED
Whether new and material evidence has been submitted to reopen a claim for bilateral knee pain is remanded.
Entitlement to service connection for chronic obstructive pulmonary disease is remanded.
Entitlement to service connection for sleep apnea is remanded.
FINDINGS OF FACT
1.  On May 1, 2013, at the Travel Board hearing, prior to the promulgation of a decision in the appeal, with knowledge of the consequences, the Board received notification from the Veteran, through his authorized representative, that he wanted to withdraw of his appeals to reopen a claim for service connection for hypertension, entitlement to service connection for migraines, entitlement to service connection for short term memory loss, and entitlement to a rating in excess of 30 percent for actinic keratosis.
2. The Veteran’s acquired psychiatric disability is at least as likely as not related to his active service.
3. The Veteran's bilateral hearing loss has been manifested by no more than Roman numeral I in his right ear and Roman numeral II in his left ear.
4. The Veteran suppurative hidradenitis has manifested with at least five or more painful scars.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeals regarding the request to reopen a claim for hypertension, entitlement to service connection for migraines, entitlement to service connection for short term memory loss, and entitlement to a rating in excess of 30 percent for actinic keratosis by the Veteran (or his authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 
2. The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1101, 1131, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385.
3. The criteria for a compensable rating for bilateral hearing loss have not been met at any point during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100.
4. The criteria for a 30 percent rating for suppurative hidradenitis have been met.  38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, and 4.7, Diagnostic Code (DC) 7804.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Marine Corps from February 1975 to February 1979 and in the United States Army from November 1990 to May 1991.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  
1. Whether new and material evidence has been submitted to reopen a claim for hypertension, entitlement to service connection for migraines, entitlement to service connection for short term memory loss, and entitlement to a rating in excess of 30 percent for actinic keratosis.
An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. See 38 C.F.R. § 20.204. 
In the present case, the Veteran, through his authorized representative, has withdrawn his appeals to reopen a claim for hypertension, entitlement to service connection for migraine, and entitlement to service connection for short term memory loss, and entitlement to an increased rating in excess of 30 percent for actinic keratosis hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of service connection for these issues and the appeals as to these issues are therefore dismissed.
2. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD)
The Veteran contends that his acquired psychiatric disability is related to his active duty service.  Upon review of the Veteran’s claims file, the Board finds that the evidence supports the Veteran’s contention, and thus, service connection is warranted.
The Board notes that the Veteran was diagnosed with PTSD in an October 2017 VA treatment note.  In this note, a VA psychiatrist identified the Veteran’s stressor in service as being adequate to support a diagnosis of posttraumatic stress disorder and stated that the veteran's symptoms are related to the claimed stressor. Moreover, the Board finds that there is no clear and convincing evidence to the contrary, and the claimed stressor is consistent with the circumstances of the Veteran's service.  Thus, the Board finds that the Veteran’s lay statement are sufficient to establish the in-service stressor.  See 38 C.F.R. § 3.304(f)(3).
In sum, the Veteran has a diagnosis of PTSD, a valid stressor, and a nexus statement from his VA psychiatrist relating this stressor to his current diagnosis of PTSD. Considering the foregoing, the Board finds that service connection for PTSD is warranted.
Increased Rating
Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 
The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
3. Entitlement to a compensable rating for bilateral hearing loss
Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. 38 C.F.R. § 4.85, DC 6100 (2013). Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. 
Exceptional hearing impairment occurs when pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or when the pure tone threshold are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In such cases, 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 is to be evaluated separately. 38 C.F.R. § 4.86.
A review of the evidence of record reveals that the Veteran was afforded VA audiological examinations for compensation purposes in March 2009, July 2015, December 2015 and June 2017.
During the March 2009 audiological examination, pure tone thresholds, in decibels, were as follows:
		HERTZ			Average
	1000	2000	3000	4000	
RIGHT	25	25	25	30	26
LEFT	20	30	40	40	33

Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear.
During the July 2015 audiological examination, pure tone thresholds, in decibels, were as follows:
		HERTZ			Average
	1000	2000	3000	4000	
RIGHT	35	30	40	50	26
LEFT	35	40	50	60	46

Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.
During the December 2015 audiological examination, pure tone thresholds, in decibels, were as follows:
		HERTZ			Average
	1000	2000	3000	4000	
RIGHT	25	25	25	45	30
LEFT	20	35	40	55	38

Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear.
During the June 2017 audiological examination, pure tone thresholds, in decibels, were as follows:
		HERTZ			Average
	1000	2000	3000	4000	
RIGHT	20	25	25	40	28
LEFT	30	35	40	55	40

Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 100 percent in the right ear and 90 percent in the left ear.
The Board notes that even selecting the most severe numbers from each of the examinations and applying the mechanical application of the rating schedule to determine the appropriate evaluation for bilateral hearing loss, the Veteran would not reach a compensable disability rating.  First, utilizing Table VI, the Veteran’s most severe results for his right ear hearing loss are from the December 2015 examination with an average decibel of 30 Hz and a Maryland Speech Discrimination average of 96 percent from his July 2015 examination is placed within the parameters of “Roman numeral I.”  See 38 C.F.R. § 4.85, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination - Table VI. Turning to the Veteran’s left ear, the Veteran’s most severe results for his left ear hearing loss are from the July 2015 examination with an average decibel of 46 Hz and a Maryland Speech Discrimination average of 90 percent from his June 2017 examination is placed within the parameters of “Roman numeral II.”  Id. 
Second, utilizing Table VII, the Board has taken these most severe results, for rating purposes results, from Table VI, “Roman numeral I” for the right ear and “Roman Numeral II” for the left ear. When placing these two results, “Roman numeral I” and “Roman numeral II,” within Table VII to determine the rating the results indicate that the Veteran’s bilateral hearing disability falls within a noncompensable rating evaluation.  See 38 C.F.R. § 4.85 Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100) - Table VII.
Consideration has also been given to the Veteran’s personal assertions in support of his claim. The Veteran is competent, as a layperson, to report on symptoms  to which he has personal knowledge, such as listening to the television at higher volumes or lip reading to assist in understanding conversations.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  But as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria.  Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for pure tone thresholds and speech recognition scores.  
Moreover, the schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing.  Here, all the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria.  The Veteran’s hearing loss disability has manifested in difficulty hearing the television and having to try to read lips to understand conversations, which causes difficulties functioning in social environments.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing.  The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high pitched sounds.  The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette, 28 Vet. App. 366 (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”).  Thus, there is no basis for extraschedular consideration. 38 C.F.R. § 3.321(b)(1) (2017).
Considering the foregoing, the Board, following the mechanical application provided by the regulatory framework described above, must deny the Veteran’s appeal for an increased rating for his bilateral hearing loss.
4. Entitlement to a compensable rating for suppurative hidradenitis
The Veteran in sum contends that the nature of his disease causes painful sores in his armpit and groin.  The Board, upon review of the claims file, finds that the evidence supports the Veteran’s contention, and thus, a 30 percent disability rating, the highest rating under the diagnostic code, for the Veteran’s suppurative hidradenitis.
In a March 2009 VA examination, a VA examiner noted that the Veteran had pustular lesion in the bilateral axillae and groin with periodic recurrence. In July 2015 examination, a VA examiner noted that the Veteran had hidradenitis suppurativa with active areas on left upper inner thigh. In the most recent examination June 2017, a VA examiner noted that the Veteran’s hidradenitis suppurativa had scars of the left and right axillae, and left and right groin.  This examination also includes the most thorough medical history of the Veteran’s disability:
In the early 1990s during deployment to the Persian Gulf, the claimant developed inflamed lumps in his bilateral axillae. The lesions would fester and then eventually drain bloody, pussy material. He was medically evaluated and was initially diagnosed as having cutaneous leishmaniasis, and he states that he was treated with oral antibiotics without benefit. He then began developing the same type of lesions in his bilateral inguinal regions. The claimant was service connected for cutaneous leishmaniasis until VA Compensation Examination on 3/26/2009, at which time the diagnosis was changed to hidradenitis suppurativa. The claimant states that he continues to develop new lesions on an ongoing basis. There are residual scars due to the inflammation of the lesions when they occur.
The examiner then went on to note that the Veteran had at any given time had residuals of the skin disability in seven different locations in or around his bilateral upper and bilateral lower extremities.  These observations are supported by the Veteran’s own statement regarding the history and extent of his skin disability. In a February 2008 Notice of Disagreement (NOD) the Veteran wrote that the disease has caused continual painful lesions throughout his groin and armpits. He explained how the disease produces painful welts with a foul odor.  The Board finds that the Veteran’s statements are credible given the nature of the disease as described by the different VA examiners.  Moreover, the Board finds that the Veteran is competent to report where his lesions are and if they are painful.
Turning to the diagnostic code, the Veteran’s disability is rated under diagnostic code 7804.  See 38 C.F.R. § 4.118 DC 7804. Scar(s), unstable or painful: five or more scars that are unstable or painful 30; three or four scars that are unstable or painful 20; one or two scars that are unstable or painful.
Upon reviewing, the evidence listed above, the Board finds that the highest disability rating is warranted for the Veteran’s skin disability.  The evidence in total demonstrates the frequent and painful manifestations of the Veteran’s disease that occur throughout the area of his armpits and groin as described by the Veteran’s statement.  The Board is aware of June 2015 examination which lists only one area affected by this disability; however, considering the nature of the Veteran’s disability as described by the VA examiner’s the Board has determined that this examination offers only a snapshot of the severity of the Veteran’s disability and considering the March 2009 and July 2017, and the Veteran’s statements the Veteran’s disability is more represented by a 30 percent rating. 
REASONS FOR REMAND
Entitlement to service connection for chronic obstructive pulmonary disease; entitlement to service connection for sleep apnea; and whether new and material evidence has been submitted to reopen a claim for bilateral knee pain are remanded.
Before adjudication can proceed with the above claims, the Board finds that further development is required.  Upon review of the claims file, the Board observes that the Veteran’s December 2012 correspondence includes a US Army Reserve Personnel Command – Chronological Statement of Retirement Points which details that the Veteran served in the United States Marine Corps from 1974 to 1979; the United States Marine Corps Reserves from 1980 to 1982; Army National Guard from 1983 to 1985; and the Army Reserves from 1986 to 2000. The Veteran’s claims file includes only service treatment records from 1974 to 1979 and 1990 to 1995.  Before adjudication can continue, the Veteran’s intervening military service treatment records should be obtained. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).
The matters are REMANDED for the following action:
1. The AOJ should obtain the Veteran’s service treatment records for any inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) for the Veteran’s service from 1980 to 1982 in the United States Marine Corps Reserves, from 1982 to 1985 in the Army National Guard, and the U.S. Army Reserves from 1986 to 1990 and from 1995 to 2000.
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. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159.
2. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response.

 
GAYLE STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Acosta, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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