Citation Nr: 18160661
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-63 692
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a right knee disorder is denied.
Entitlement to a rating in excess of 20 percent prior to September 14, 2010 and in excess of 40 percent therefrom for lumbar spondylosis is denied.
Entitlement to a separate 10 percent rating prior to September 14, 2010 for left lower extremity (LLE) radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. 
Entitlement to an initial rating in excess of 20 percent from September 14, 2010 for LLE radiculopathy is denied.
Entitlement to a separate 10 percent rating prior to September 14, 2010 for right lower extremity (RLE) radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. 
Entitlement to an initial rating in excess of 10 percent from September 14, 2010 for RLE radiculopathy is denied. 
Entitlement to an initial compensable rating for bilateral hearing loss is denied. 
Entitlement to a rating in excess of 10 percent for tinnitus is denied.
Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae is denied.
REMANDED
Entitlement to service connection for a left knee disorder is remanded.
Entitlement to an effective date earlier than September 14, 2010 for the award of a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
Entitlement to an initial rating in excess of 10 percent for laceration of the left 5th proximal interphalangeal joint is remanded.
FINDINGS OF FACT
1.  The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of a right knee disorder.
2.  Prior to September 14, 2010, the Veteran’s lumbar spondylosis did not result in limitation of flexion to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least 4 weeks during a 12-month period. 
3. From September 14, 2010, the Veteran’s lumbar spondylosis has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. 
4.  Prior to September 14, 2010, the evidence is at least in equipoise as to whether the Veteran’s lumbar spondylosis demonstrated LLE and RLE radiculopathy with mild symptomology.
5.  From September 14, 2010, the Veteran’s LLE radiculopathy has not been productive of moderately severe symptomatology.  
6. From September 14, 2010, the Veteran’s RLE radiculopathy has not been productive of moderate symptomatology.  
7.  Throughout the pendency of the appeal, the Veteran’s puretone threshold averages and speech discrimination percentages have corresponded to no worse than Level I hearing acuity in the right ear and no worse than Level I hearing acuity in the left ear.
8.  The Veteran’s tinnitus has been assigned a 10 percent rating, the maximum schedular rating authorized under VA regulatory provisions.
9.  The Veteran’s pseudofolliculitis barbae has not been manifested by dermatitis or eczema covering at least 20 percent of the entire body or at least 20 percent of exposed areas affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.
CONCLUSIONS OF LAW
1.  The criteria for service connection for a right knee disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303.
2.  Prior to September 14, 2010, the criteria for a rating in excess of 20 percent for lumbar spondylosis are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5237.
3.  From September 14, 2010, the criteria for a rating in excess of 40 percent for lumbar spondylosis are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5237.
4.  Prior to September 14, 2010, the criteria for a separate 10 percent rating, but no higher, for LLE radiculopathy are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.
5.  Prior to September 14, 2010, the criteria for a separate 10 percent rating, but no higher, for RLE radiculopathy are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.
6.  From September 14, 2010, the criteria for an initial rating in excess of 20 percent for LLE radiculopathy are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.
7.  From September 14, 2010, the criteria for an initial rating in excess of 10 percent for RLE radiculopathy are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.
8.  The criteria for an initial compensable rating for service-connected bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, DC 6100.
9.  The criteria for a disability rating in excess of 10 percent for tinnitus are not met.  38 U.S.C. § 1155, 5103, 5103A; 38 C.F.R. §§ 3.159 4.1-4.14, 4.87, DC 6260.  
10.  The criteria for a rating in excess of 10 percent for pseudofolliculitis barbae are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7806.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1987 to December 1997.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2010, October 2012, and November 2013 rating decisions.  
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  
With any claim for service connection, it is necessary for a current disability to be present.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Without a current diagnosis, there may be no service connection for the claimed condition.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997).
1.  Entitlement to service connection for a right knee disorder.  
The Veteran seeks service connection for a right knee disorder.  After a thorough review of the evidence, the Board finds that the criteria for service connection for a right knee disorder have not been met.  
In that regard, the Board emphasizes that there is simply no evidence of a current disability to support service connection for a right knee disorder.  The Veteran’s service treatment records show that when he was examined in December 1997 for separation from service, his lower extremities were clinically evaluated as normal.  Postservice, there are no VA or private treatment records regarding any disorder of the right knee, and the Veteran has not indicated he received or is receiving treatment for a right knee disorder.  As noted above, a current disability is required in order to establish service connection.  Moreover, the Board stresses that the duty to assist is a two-way street.  If the Veteran wishes help, he must actively assist VA by providing the information requested by VA to support his claim.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  
The Board has specifically considered the Veteran’s statements that he is entitled to service connection for a right knee disorder.  However, to the extent that the Veteran’s general claim for service connection for a right knee disorder implies that he has a current disability, the Board finds that he is not competent to attest to such a diagnosis.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.   See Gilbert v. Derwinski, 1 Vet. App 49 (1990).  Accordingly, the claim for service connection for a right knee disorder must be denied.  
Increased Rating
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.”  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40.  It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered.  See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Consideration must also be given to weakened movement, excess fatigability and incoordination.  38 C.F.R. § 4.45.
It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability.  It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.
The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
2.  Entitlement to higher ratings for lumbar spondylosis and LLE and RLE radiculopathy. 
The Veteran’s service-connected lumbar spondylosis is currently evaluated under Diagnostic Code 5237 for a lumbosacral strain.  VA regulations provide spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever would result in a higher rating.  38 C.F.R. § 4.71a.
Under the General Rating Formula, a 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for flexion of the thoracolumbar spine between 30 and 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.
Under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during a 12 month period; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during a 12 month period; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks during a 12 month period.  38 C.F.R. § 4.71a.
The Veteran has also been diagnosed with LLE and RLE radiculopathy associated with lumbar spondylosis.  VA regulations provide that any associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code.  See 38 C.F.R. § 4.71a, Note (1).  
In this case, the Veteran’s radiculopathy has been rated under DCs 8599-8520, for paralysis of the sciatic nerve.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.  Under DC 8520, an 80 percent disability rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost.  Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.”  A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy.  A 40 percent disability rating is assigned for moderately severe, incomplete paralysis.  A 20 percent disability rating is assigned for moderate, incomplete paralysis.  38 C.F.R. § 4.124a.  
In January 2010, VA treatment records indicated that the Veteran had numbness, tingling, and weakness of the left lower extremity and ambulation with mildly diminished velocity.  
In April 2010, the Veteran underwent a VA examination to evaluate his low back disorder.  The examiner diagnosed lumbar spondylosis and scoliosis with bilateral lower extremity radiculopathy.  The Veteran had symptoms of stiffness, moderate pain, and leg/foot weakness.  He also had hypoactive reflexes of the lower extremities.  Range of motion testing showed limitation of flexion to 40 degrees, extension to 10 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 15 degrees.  There was no additional loss of range of motion after repetitive use testing.  The examiner indicated that the Veteran’s back disorder would cause increase absenteeism because of decreased mobility, decreased strength, and lower extremity pain.  
In June 2011, the Veteran’s low back was evaluated again by a VA examiner.  The examiner diagnosed lumbar spondylosis with radiculopathy of the bilateral lower extremities.  The Veteran demonstrated chronic low back pain and weekly flare-ups precipitated by movement and alleviated by rest.  The Veteran reported that during flare-ups he could not walk.  The Veteran also demonstrated numbness, paresthesias, leg/foot weakness and decreased sensation, falls, fatigue, decreased motion, stiffness, spasms, pain, and antalgic gait.  There was no ankylosis of the thoracolumbar spine.  Range of motion testing showed limitation of flexion to 50 degrees and extension to 10 degrees.  There was objective evidence of pain with active range of motion.  The examiner was unable to test repetitive motion due to pain.  The Veteran had IVDS with 4 incapacitating episodes that have lasted 2 days.
The Veteran underwent another VA examination in September 2012 to evaluate his low back disorder.  The examiner diagnosed the Veteran with lumbar spondylosis, spondylolisthesis, and radiculopathy.  Range of motion testing showed limitation of flexion to 0 degrees due to painful motion, extension to 0 degrees due to painful motion, left and right lateral flexion to 0 degrees due to painful motion, and left and right lateral rotation to 0 degrees due to painful motion.  The Veteran had guarding and/or muscle spasms that do not result in abnormal gait or spinal contour.  The Veteran also demonstrated lower extremity radiculopathy consisting of intermittent pain, moderate on left and mild on right; paresthesias, moderate on left and mild on right; and numbness, moderate on left and mild on right.  The severity of the lower extremity radiculopathy was moderate on left and mild on right.  The Veteran had IVDS with no incapacitating episodes.  The examiner indicated that the Veteran’s low back disorder caused him to be severely disabled and his radiculopathy caused mild to moderate disability. 
On June 2013 VA examination, the examiner diagnosed the Veteran with spinal spondylosis with stenosis, spondylolisthesis at L5-S1, and radiculopathy of the bilateral lower extremities.  The Veteran reported worsening chronic back pain and radiation to both lower extremities, worse on the left.  The Veteran also reported flare-ups with prolonged sitting and standing and walking more than 3 blocks.  Range of motion testing showed limitation of flexion to 10 degrees with pain and extension to 5 degrees with pain.  The Veteran was unable to perform repetitive motion testing because of pain.  The examiner indicated that the Veteran had range of motion loss due to less movement than normal, weakened movement, and pain on movement.  There was guarding or muscle spasms that resulted in an abnormal gait.  The Veteran also had radiculopathy productive of constant pain, moderate on the right and mild on the left and intermittent pain, moderate on the right and mild on the left.  The severity of the radiculopathy was moderate on the right and mild on left.  The examiner indicated that the Veteran was severely disabled due to his low back pain and his ability to perform both physical and sedentary employment was impaired.  
In light of the evidence above and the governing legal authority, the Board finds that higher ratings are not warranted for the Veteran’s lumbar spondylosis for either period on appeal.  Prior to September 14, 2010, the Veteran’s lumbar spondylosis did not result in limitation of flexion to less than 30 degrees, favorable ankylosis, or incapacitating episodes having a total duration of at least 4 weeks, during a 12-month period (i.e., the criteria for a 40 percent rating).  Moreover, from September 14, 2010, the Veteran did not have unfavorable ankylosis of the thoracolumbar spine (i.e., the criteria for a higher 50 percent rating) or incapacitating episodes having a total duration of at least 6 weeks during a 12 month period (i.e., criteria for a higher 60 percent rating.  As such, the Board finds that a rating in excess of 20 percent prior to September 14, 2010 and in excess of 40 percent therefrom for lumbar spondylosis is denied. 
The Board acknowledges that the VA examinations of the Veteran’s lumbar spine must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016).  The Board has also considered the United States Court of Appeals for Veterans’ Claims (Court’s) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability” and the examiner’s determination in such regard “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.”  In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp.  Significantly, however, to the extent that the examination findings of record relative to the lumbar spine are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose.  Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  In that regard, the Board emphasizes that current examination findings would not be useful in adjudicating the rating assigned for the periods prior to September 14, 2010, and any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to speculate as to the pre-September 14, 2010 ranges of motion.  Moreover, for any period following September 14, 2010, the Veteran is in receipt of at least a 40 percent rating.  Ratings in excess of 40 percent for the lumbar spine do not involve assessment of range of motion, and a remand to obtain a current examination that complies with Correia and Sharp would also not be useful.
The Board acknowledges that the most recent VA examination regarding the Veteran’s lumbar spondylosis was from June 2013.  Although, this examination is several years old, neither the Veteran nor his attorney has asserted that the Veteran’s lumbar spondylosis has worsened since the prior examination.  The Board emphasizes that the passage of time alone, without an allegation of worsening since the last VA examination, does not warrant a new examination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Accordingly, the Board finds that the current evidence of record is adequate for adjudication purposes.
With regard to the Veteran’s LLE and RLE radiculopathy associated with lumbar spondylosis, the Board notes that service connection is already in effect from September 14, 2010.  Nevertheless, the record indicates that, prior to September 14, 2010, the Veteran’s lumbar spondylosis caused LLE and RLE radiculopathy with symptomatology consisting of LLE numbness, tingling, and weakness with decreased reflexes and mildly decrease gait velocity, and RLE weakness with decreased reflexes.  Based on this symptomatology, the evidence is at least in equipoise as to whether the Veteran’s LLE and RLE radiculopathy resulted in mild symptomatology prior to September 14, 2010.  Significantly, while the Veteran demonstrated some sensory and reflex disturbances, there was no evidence of radicular pain and there was only mildly decreased gait velocity.  Accordingly, the Board finds that separate 10 percent ratings for LLE and RLE radiculopathy prior to September 14, 2010 are warranted.  Higher 20 percent ratings are not warranted prior to September 14, 2010, as the record does not show moderate radicular symptomatology.  
The Board has also considered whether higher ratings are warranted from September 14, 2010 for LLE and RLE radiculopathy.  Notably, for this period, the Veteran was assigned a 20 percent rating for radiculopathy of the LLE and a 10 percent rating for radiculopathy of the RLE.  However, the evidence of record does not demonstrate that the Veteran’s LLE radiculopathy was moderately severe (i.e., the criteria for a 40 percent rating) or that his RLE radiculopathy was moderate (i.e., the criteria for a 20 percent rating).  From September 14, 2010, VA examiners have consistently documented the Veteran’s LLE radiculopathy as moderate and his RLE radiculopathy as mild.  Accordingly, the Board finds that, from September 14, 2010, higher ratings for LLE and RLE radiculopathy are not warranted. 
3.  Entitlement to a higher initial rating for bilateral hearing loss.  
For hearing impairment, the Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing.  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. § 4.85.  The “puretone threshold average” as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85(d).  Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).
When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).
The Veteran was provided a VA audiology examination in July 2010.  The Veteran reported hearing loss and constant tinnitus.  The results were as follows:
Hertz	500	1000	2000	3000	4000
Right	20	30	35	35	40
Left	20	30	35	35	35
The average puretone threshold was 35 for the right ear and 34 for the left ear. The Veteran’s speech recognition scores using the Maryland CNC word list was 98 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss with constant tinnitus.  The examiner documented the functional impact of the hearing loss as decreased concentration.
The Veteran underwent another VA audiology examination in June 2011.  The results were as follows:
Hertz	500	1000	2000	3000	4000
Right	15	25	30	30	40
Left	25	25	30	35	35
The average puretone threshold was 31 for the right ear and 31 for the left ear. The Veteran’s speech recognition scores using the Maryland CNC word list was 96 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss and tinnitus.  The examiner documented no significant occupational effects of the Veteran’s hearing loss and no effects on usual daily activities. 
In June 2013, the Veteran underwent a VA audiological examination.  The results were as follows:
Hertz	500	1000	2000	3000	4000
Right	15	25	35	40	45
Left	20	35	40	50	45
The average puretone threshold was 36 for the right ear and 42 for the left ear. The Veteran’s speech recognition scores using the Maryland CNC word list was 96 percent in the right ear and 100 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss with tinnitus.  The examiner documented the functional impact of the hearing loss was that normal conversation sounds soft to the Veteran.  
In August 2016, the Veteran most recently underwent a VA audiological examination.  The results were as follows:
Hertz	500	1000	2000	3000	4000
Right	30	30	30	35	45
Left	30	30	35	35	35
The average puretone threshold was 35 for the right ear and 34 for the left ear. The Veteran’s speech recognition scores using the Maryland CNC word list was 96 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss with tinnitus.  The examiner documented the functional impact of hearing loss and tinnitus was difficulty hearing on the phone, interference with sleep and the ability to hear.  
In light of the foregoing, the Board finds that an initial compensable rating is not warranted for service-connected bilateral hearing loss.  In pertinent part, after comparing the average puretone thresholds and speech recognition scores to Table VI, the Veteran is left with a numeric designation of Level I for his right ear and Level I for his left ear.  Further application of those levels to Table VII produces a 0 percent rating.  See 38 C.F.R. § 4.85.  Accordingly, as the preponderance of the evidence is against a finding that the criteria for a compensable disability rating have been met or more nearly approximated, the benefit of doubt doctrine is not for application and the Veterans claim for a higher rating for bilateral hearing loss is denied.  38 C.F.R. §§ 4.3, 4.7.
4.  Entitlement to a higher rating for tinnitus. 
The Veteran’s tinnitus is currently rated under 38 C.F.R. § 4.87, DC 6260.  Under DC 6260, only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.8, DC 6260, Note (2).  This is the maximum schedular rating assignable for tinnitus. See Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006). 
The Veteran is seeking a higher rating for his service-connected tinnitus.  However, DC 6260 precludes an evaluation in excess of a single 10 percent schedular rating for tinnitus.  Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
5.  Entitlement to a higher rating for pseudofolliculitis barbae.
The Veteran is currently rated at 10 percent for the service-connected pseudofolliculitis barbae, under DC 7899-7806.  38 C.F.R. § 4.118.  While acknowledging the criteria pertaining to DCs 7800-7805, the Board notes that the Veteran’s service-connected pseudofolliculitis barbae has not been manifested by any scarring or disfigurement; rather, the Veteran’s skin disability more closely approximates the ratings under the diagnostic code for dermatitis or eczema.  Thus, DCs 7800, 7801, 7802, 7803, 7804 and 7805 are not applicable as to this issue.
Under DC 7806, a 0 percent rating is warranted for dermatitis or eczema covering less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period.  A 10 percent rating is warranted for dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such corticosteroids or immunosuppressive drugs required for a total duration of less than six-weeks during the past 12-month period.  A 30 percent rating is warranted for dermatitis or eczema covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating is warranted for dermatitis or eczema covering more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118.  The Board notes that the U.S. Court of Appeals for the Federal Circuit recently held that topical corticosteroids do not constitute systemic therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).
The Veteran was afforded a VA skin diseases examination in June 2013.  He reported that his pseudofolliculitis barbae consisted of itchy and painful facial bumps when he shaves.  He also reported that he had not been taking oral or topical medication for his skin condition for the past 12 months.  Upon physical examination, the examiner documented dermatitis covering a total body area of 5 percent to less than 20 percent and a total exposed area of less than 5 percent.  The examiner also indicated that the dermatitis consisted of irritated few papules diffusely under the beard line.  There was no scarring and no functional impact on his ability to work.  
VA treatment records from 2010 to 2016 reflect use of topical antibiotics and vitamins for his beard area.  
Based on the foregoing, the Board finds that the criteria for a higher 30 percent rating for pseudofolliculitis barbae are not met.  Most significantly, the Veteran’s skin disorder does not cover at least 20 percent of the entire body or at least 20 percent of exposed areas.  Moreover, although it appears that the Veteran requires the use of constant or near-constant topical antibiotic and vitamin medication therapy on his beard area, the use of topical therapy does not constitute systemic therapy for VA purposes.  See Johnson, 862 F.3d at 1351.  Accordingly, a rating in excess of 10 percent for pseudofolliculitis barbae is not warranted.  
The Board acknowledges that the most recent VA examination regarding the Veteran’s pseudofolliculitis barbae was from June 2013.  Although, this examination is several years old, neither the Veteran nor his attorney has asserted that the Veteran’s pseudofolliculitis barbae has worsened since the prior examination.  The Board emphasizes that the passage of time alone, without an allegation of worsening since the last VA examination, does not warrant a new examination.  See Palczewski, 21 Vet. App. at 174.  Accordingly, the Board finds that the current evidence of record is adequate for adjudication purposes.
REASONS FOR REMAND
1.  Entitlement to service connection for a left knee disorder is remanded.
In April 2010, the Veteran underwent a VA examination to assess the etiology of his left knee disorder.  The Veteran reported that he incurred wear and tear on his left knee while in the military and he continues to have difficulty mobilizing the knee and walking.  The examiner diagnosed the Veteran with left knee patellofemoral pain syndrome and opined that it was less likely as not caused by or a result of the left knee strain in service.  The examiner explained that there were no x-ray osseous knee findings and the ligaments and tendons appeared intact, so a strain was unlikely.  The examiner also explained that there was no conclusive way to link the Veteran’s current knee pain to the in-service complaint about 10 to 15 years ago and there were no current treatment records for left knee complaints, diagnosis, or treatment.  
In spite of the VA medical opinion provided above, the Board finds that remand is warranted for a new VA examination and medical opinion.  In that regard, in providing the negative nexus opinion above, the VA examiner relied, at least in part, on the lack of post-service medical evidence for the Veteran’s left knee disorder and did not explicitly consider or discuss the Veteran’s contentions that his left knee disorder was due to wear and tear from active duty service and that he continued to have difficulty with his knee since service.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007).  The Board emphasizes that “symptoms, not treatment, are the essence of evidence of continuity of symptomatology.”  Savage v. Gober, 10 Vet. App. 488, 496 (1997).
2.  Entitlement to an earlier effective date for a TDIU is remanded.
The Veteran’s claim for service connection for a left knee disorder, remanded herein, has been pending prior to September 14, 2010.  Accordingly, consideration of entitlement to an effective date prior to September 14, 2010 for a TDIU may be dependent upon the Veteran’s claim for service connection for a left knee disorder.  Therefore, the Board finds that the matter of entitlement to an earlier effective date for a TDIU is inextricably intertwined with the Veteran’s service-connection claim remanded herein.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Remand of the inextricably intertwined claim is, thus, also required.  
3.  Entitlement to an initial rating in excess of 10 percent for laceration of the left 5th proximal interphalangeal joint is remanded. 
In a November 2013 rating decision, the AOJ continued a 10 percent rating for laceration of the left 5th proximal interphalangeal joint.  In January 2014, the Veteran submitted a timely notice of disagreement to the November 2013 rating decision.  While the AOJ appears to have addressed this issue in a subsequent December 2016 rating decision, wherein the AOJ decreased the evaluation to 0 percent, the Veteran has never been issued a statement of the case (SOC) with regard to this issue.  See Manlincon v. West, 12 Vet. App. 238, 240 (1999).  Accordingly, remand is warranted for the AOJ to direct the issuance of an SOC.  
The matters are REMANDED for the following actions:
1.  With the Veteran’s assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers.  All reasonable attempts to obtain such records should be made and documented.  
2.  Issue an SOC to the Veteran regarding entitlement to an increased rating for laceration of the left 5th proximal interphalangeal joint.  The Veteran must be advised of the time limit in which he may file a substantive appeal.  See 38 U.S.C. § 20.302(b).  If, and only if, the appeal is perfected by a timely filed substantive appeal, should this issue be certified and returned to the Board. 
3.  Following the record development above, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his left knee disorder.  The examiner must review pertinent documents in the Veteran’s claims file in conjunction with the examination.  All indicated studies should be completed. All findings must be fully reported.
a)  After evaluation and review of the record, provide a diagnosis for any current left knee disorder.
b)  The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed left knee disorder had its onset in, or is otherwise related to, the Veteran’s active duty service.  
The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion.  If his reports are discounted, the examiner should provide a reason for doing so.  
A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.
 
A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	P. E. Metzner, 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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