Decision Date: 11/06/95 Archive Date: 11/06/95 DOCKET NO. 93-27 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to a rating in excess of 10 percent for eczema. 2. Entitlement to a rating in excess of 10 for post- traumatic stress disorder (PTSD). 3. Entitlement to a compensable rating for defective hearing in the left ear. 4. Entitlement to a compensable rating for shell fragment wound scars of the right leg. 5. Entitlement to a compensable rating for dermatophytosis pedis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from June 1967 through April 1969. A portion of that time was spent in the Republic of Vietnam, where his awards and decorations included the Purple Heart Medal. This matter came before the Board of Veterans' Appeals (Board) as a result of decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (IC)in St. Paul, Minnesota. In June 1991, the VAROIC denied entitlement to ratings in excess of 10 percent for eczema and PTSD. It also denied entitlement to a compensable evaluation for shell fragment wound scars of the right leg. In October 1991, following a hearing at the VAROIC, the hearing officer confirmed and continued those decisions. He also denied a rating in excess of 10 percent for eczema and a compensable rating for dermatophytosis pedis. The veteran disagreed with those decisions, and this appeal ensued. After reviewing the record, the Board is of the opinion that only the issues of increased rating for defective hearing in the left ear has been properly developed and certified for appeal. Therefore, it will be decided on the merits. Further development is warranted, however, with respect to the issues of increased ratings for eczema, PTSD, dermatophytosis of the feet, and shell fragment wound scars of the right leg. Accordingly, those issues will be the subject of a remand at the end of this decision. See Parker v. Brown, 7 Vet.App. 116 (1994); Holland v. Brown, 6 Vet.App. 443 (1994); Kellar v. Brown, 6 Vet.App. 157 (1994). During the pendency of the appeal, the veteran raised contentions to the effect that service connection is warranted for thrombocytopenia, and chloracne, both claimed as residuals of Agent Orange exposure. He also claimed service connection for defective hearing in the right ear. In March 1993, the VAROIC denied service connection for defective hearing in the right ear. It deferred a decision on the claim for service connection for thrombocytopenia, pending the issuance of additional VA regulations governing the residuals of Agent Orange exposure. Those regulations have since been issued; however, no decision has yet been rendered regarding service connection for thrombocytopenia. In May 1993, the VAROIC denied service connection for chloracne, claimed as a residual of Agent Orange exposure. It is unclear which, if any, of these issues the veteran wishes to pursue. Accordingly, they are referred to the VAROIC for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that the rating for defective hearing in the left ear does not adequately reflect the level of impairment caused by that disability. He reports that that disability particularly interferes with his current duties as an ambulance driver and nursing home employee. Therefore, he maintains that an increased rating is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for a compensable rating for defective hearing in the left ear. FINDINGS OF FACT 1. The veteran demonstrates level I hearing in his service- connected left ear. 2. The veteran is not totally deaf in his non-service- connected right ear. CONCLUSION OF LAW The criteria for a compensable evaluation for defective hearing in the left ear have not been met. 38 U.S.C.A. § 1155, 1160(a)(3), 5107(a) (West 1991); 38 C.F.R. § 3.321(b)(1), 4.85 - 4.87, and Part 4, Diagnostic Code 6100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 1969, the VAROIC granted service connection for defective hearing in the veteran's left ear and assigned a noncompensable evaluation. He now seeks a compensable rating for that disability. Percentage evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the diagnostic codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). For VA purposes, the severity of hearing loss is determined by comparing audiometric test results in the conversational voice range (1000, 2000, 3000, and 4000 hertz) with the criteria set forth in 38 C.F.R. Part 4, Diagnostic Codes 6100 through 6110 (1994). Those codes establish eleven levels of auditory acuity, from Level I for mild hearing loss through Level XI for profound deafness. A level of auditory acuity is determined for each ear, and then those levels are combined to give an overall level of hearing impairment. 38 C.F.R. § 4.85 (1994). The hearing in the non-service-connected ear is presumed to be at Level I. Evaluations of unilateral defective hearing range from noncompensable for Levels I through IX to a maximum of 10 percent for Levels X and XI. The most recent records show that the veteran has undergone three audiometric examinations in the past several years. In June 1990, he demonstrated the following pure tone thresholds at the hertz levels indicated: HERTZ1000200030004000RIGHT25204065LEFT25153060Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. The tester stated that the veteran's hearing was essentially within normal limits through 2000 hertz but that he had a mild to moderately severe sensorineural hearing loss from 3000 through 8000 hertz. In May 1991, the veteran demonstrated the following pure tone threshold levels at the hertz indicated: HERTZ1000200030004000RIGHT25204070LEFT25153065Speech audiometry revealed speech recognition ability of 96 percent in the each ear. The tester stated that the veteran had a bilateral high frequency sensorineural hearing loss which was essentially unchanged from June 1990. She noted that the veteran could be expected to have communication problems in difficult listening situations. It was noted that amplification could provide benefits. In February 1992, the veteran demonstrated the following pure tone threshold levels at the hertz indicated: HERTZ1000200030004000RIGHT20153060LEFT15153055Speech audiometry revealed speech recognition ability of 96 percent in the each ear. The tester stated that the veteran's hearing was stable and unchanged from May 1991. It was noted that he had normal hearing through 2000 hertz with a mild to moderate sensorineural loss from 3000 through 8000 hertz. It was also noted that the veteran had tried bilateral hearing aids and found them unsatisfactory and that it was doubtful that any other amplification could be beneficial. That was explained to the veteran, and he indicated that he would consider applying for amplification some time in the "next 1-3 years" to see if the technology had improved for high frequency hearing loss. He did not see the ear, nose, and throat service and did not wish to do so. No further recommendations were made, and he was discharged from the audiology service to return as needed. In January 1993, the veteran's wife stated that the veteran's hearing impairment manifested itself in several ways. She stated that for example, the veteran had difficulty hearing the phone ringing and that he had difficulty hearing in situations where there was background noise. She also reported that he had difficulty hearing children's voices, particularly those of young children. While helpful in understanding the problems caused by the veteran's hearing loss, such manifestations must be viewed in light of the results of the audiometric tests. The foregoing testing consistently shows that the veteran has Level I hearing in his service-connected left ear. They do not show that he is totally deaf in his non-service- connected right ear; and therefore, he is presumed to have Level I hearing in that ear. The overall rating is Level I or mild impairment of auditory acuity. That level is contemplated by his current noncompensable evaluation; and therefore, an increase is not warranted at this time. To accord justice, the Board has considered the possibility of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1994); however, the evidence does not present such an exceptional or unusual disability picture, with frequent periods of hospitalization or marked interference with employment, as to render impractical the use of the regular schedular standards. Accordingly, there is no reasonable basis for the assignment of an extraschedular rating at this time. ORDER A compensable rating for defective hearing in the left ear is denied. REMAND The veteran also seeks a rating in excess of 10 percent for PTSD. He reports that that disability is manifested primarily by sleep difficulty, nightmares, intrusive thoughts of combat, and startle reaction. He notes that as a result of his PTSD, he has had multiple jobs since service and has had difficulty maintaining employment. Finally, he reports that he receives continuing treatment for PTSD, including group therapy and medication. In June 1990, Terry L. Selby, MSW, found that the veteran's PTSD was severe and planned to see him on a weekly basis during the ensuing 15 weeks. He also planned to admit the veteran to a combat therapy group in July. Records of that treatment have not been associated with the claims folder. The veteran has not had a VA psychiatric examination since September 1990. As noted above, the veteran also seeks increased ratings for eczema, dermatophytosis of the feet, and shell fragment wound scars of the right leg. He has been followed by the VA for treatment of skin disease of various type. The last record of such treatment was dated in November 1992. Although the issues of increased ratings for eczema, dermatophytosis of the feet, and shell fragment wound scars of the right leg have been considered by the VAROIC, the Statement of the Case does not contain the criteria used to rate those disabilities. The failure to provide such information constitutes a breach of the VA's statutory duty and must be cured prior to further appellate action. 38 U.S.C.A. § 7105(d)(1)(B) (West 1991). In light of the foregoing, the Board is of the opinion that further development of the record is warranted prior to further appellate consideration. Accordingly, the case is remanded for the following actions: 1. The RO should contact the veteran and request the names, addresses, and dates of treatment or examination, of all health care providers who treated or examined him for PTSD or skin disease or shell fragment wound scars of the right leg in recent years. This should include, but is not limited to, the clinical records of Terry L. Selby, MSW. After obtaining any necessary authorization, the RO should request copies of the records of such treatment or examinations not currently on file. Any records so obtained should then be associated with the claims folder. Failures to respond or negative replies to any request should be noted in writing an also associated with the claims folder. 2. When the foregoing actions are completed, the RO should schedule the veteran for an examination by a board-certified psychiatrist, if available. The purpose of the examination is to determine the extent of the veteran's PTSD. All appropriate tests and studies should be performed, and any indicated consultations should be scheduled. Prior to the examination, the claims folder must be made available to the examiner so that the relevant medical history may be reviewed. 3. The veteran should also be scheduled for an examination by a board-certified dermatologist if available. The purpose of the examination is to determine the extent of the veteran's service-connected eczema and dermatophytosis pedis and shell fragment wound scars on his right leg. All appropriate tests and studies should be performed, and color photographs should be taken. Any indicated consultations should also be scheduled. Prior to the examination, the claims folder must be made available to the examiner so that the relevant medical history may be reviewed. 4. When the requested development has been completed, the RO should readjudicate the claims for increased ratings for PTSD, eczema, dermatophytosis pedis, and shell fragment wound scars of the right leg. If the benefits sought on those claims are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case on all issues in appellate status and afforded an opportunity to respond. The Supplemental Statement of the Case must include, but is not limited to, the rating schedule provisions governing eczema, dermatophytosis pedis, and the shell fragment wound scars of the right leg. Thereafter, if otherwise in order, the RO should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The purposes of the remand are to develop the evidence and to ensure compliance with due process of law. The veteran need take no action until he is notified. ROBERT E. SULLIVAN The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -