11-06 961
11-06 961
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty Jan 2004–Jan 2008; claim file originated from a June 2008 RO decision and proceeded to Board hearings and remands (Board hearings in Feb 2014; remands in May 2014 and Jan 2017).
- Veteran seeks service connection for bilateral hearing loss and allergic rhinitis, and a higher initial rating for acne (service‑connected effective Jan 22, 2008).
- Audiology records (2004–2014) show threshold shifts in service but no audiometric results meeting VA disability criteria (38 C.F.R. § 3.385); VA exams in 2014 showed normal hearing and 96% speech recognition.
- Medical records and multiple STRs document nasal congestion/allergic symptoms before and during service; VA exams (2014, 2017) and record review concluded allergic rhinitis pre‑existed service and was not aggravated beyond natural progression.
- Acne record: in‑service cystic/inflammatory acne with treatment (including Accutane), residual pitted (atrophic) scarring on both cheeks measured at ~4×4 cm each; VA exam found pitted scarring constituting characteristics of disfigurement but no gross tissue loss or asymmetry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — bilateral hearing loss | Veteran contends he had right‑ear hearing loss at separation and ongoing symptoms (friends/family must speak louder). | VA/RO: Audiograms and VA exam do not meet regulatory thresholds for a hearing disability; no current VA‑defined hearing loss. | Denied — no current hearing disability shown under 38 C.F.R. § 3.385. |
| Service connection — allergic rhinitis | Veteran asserts service‑connected nasal/sinus problems worsened during service and persists. | VA/RO: Record and VA exams show symptoms pre‑dated service and continued without aggravation beyond natural progression. | Denied — condition clearly and unmistakably pre‑existed service and was not aggravated by service. |
| Initial rating for acne (since Jan 22, 2008) | Veteran seeks compensable/higher rating for acne and scarring from service acne. | VA/RO: Acne primarily superficial but residual pitted cheek scarring meets disfigurement criteria for 30% (two characteristics) but not higher criteria. | Granted 30% effective Jan 22, 2008; no rating in excess of 30% warranted. |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required for service connection)
- McClain v. Nicholson, 21 Vet. App. 319 (2007) (current disability may be shown if present when claim filed or during pendency)
- Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (diagnosis prior to filing can show current disability at claim filing)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology for chronic disease claims)
- Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (presumption of soundness and burden to rebut)
- Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006) (natural progression standard for rebutting presumption of soundness)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule)
- Hensley v. Brown, 5 Vet. App. 155 (1993) (audiometric thresholds and hearing loss evaluation)
- Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (limits of lay competence on complex medical issues)
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (consideration of all applicable rating provisions)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staging ratings over time)