Citation Nr: 1618800	
Decision Date: 05/10/16    Archive Date: 05/19/16

DOCKET NO.  11-23 918	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

1.  Entitlement to an increased rating for bilateral hearing loss, rated as 0 percent disabling prior to October 30, 2015, and as 20 percent disabling on and after that date.

2.  Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Sean Kendall, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to May 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The October 2010 rating decision continued a 0 percent (noncompensable) rating for bilateral hearing loss and denied entitlement to service connection for prostate cancer.  A notice of disagreement was received in April 2011, a statement of the case was issued in July 2011, and a substantive appeal was received in August 2011. 

In August 2014, the Board remanded this case in order to schedule the Veteran for a videoconference hearing at his local RO.  

In February 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of this hearing was prepared and associated with the claims file.

In March 2015, the Board remanded this case for additional development.  As a result of the directed development, a January 2016 rating decision increased the rating for the Veteran's bilateral hearing loss from 0 percent to 20 percent effective October 30, 2015. Because this increase constitutes less than a full grant of the benefit sought, this issue remains on appeal.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  Following the completion of the requested development, the case has been returned to the Board for further appellate review.  


FINDINGS OF FACT

1.  Prior to October 30, 2015, the Veteran's bilateral hearing loss was manifested by no more than Level I hearing in the right ear and no more than Level I hearing in the left ear.

2.  On and after October 30, 2015, the Veteran's bilateral hearing loss is manifested by no more than Level V hearing in the right ear and no more than Level V hearing in the left ear.

3.  Resolving reasonable doubt in his favor, the Veteran was exposed to herbicides during his service at U-Tapao, Thailand.


CONCLUSIONS OF LAW

1.  Prior to October 30, 2015, the criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2015).  

2.  On and after October 30, 2015, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2015).  

3.  Prostate cancer was incurred as a result of in-service herbicide exposure.  38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims.  VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2014)).  In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2015)).

The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Dingess, supra; Pelegrini, supra.

In light of the fully favorable decision with respect to the claim of entitlement to service connection for prostate cancer, the Board finds that any deficiencies with respect to satisfying the notice or assistance requirements of the VCAA are moot.

With respect to the claim of entitlement to an increased rating for bilateral hearing loss, the Board finds that the notification requirements of VCAA have been satisfied in this case.  In this regard, the Board notes a June 2010 evidentiary development letter, issued prior to the initial adjudication of the Veteran's claim in October 2010, in which the RO advised the appellant of the evidence needed to substantiate his claim of entitlement to an increased rating.  The appellant was advised in this letter of his and VA's responsibilities under the VCAA, to include what evidence should be provided by him and what evidence should be provided by VA.  This letter also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra.  

The Board further finds that the duty to assist requirements of the VCAA have also been satisfied in this case.  38 U.S.C.A. §§ 5103 and 5103A.  Specifically, the Board finds that relevant evidence relative to the issue on appeal has been obtained and associated with the claims folder.  In particular, the Board notes that the RO obtained the Veteran's VA medical records and his identified available private medical records.  

The RO also arranged for the Veteran to undergo VA examinations in July 2010, July 2012, and October 2015.  The Board finds that the resulting reports are adequate for the purpose of determining entitlement to an increased rating.  The examiners reviewed the record and elicited from the Veteran his history of complaints and symptoms.  The examination reports provide pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of the Veteran's disability.  For these reasons, the Board concludes that the examination reports in this case provide an adequate basis for a decision.

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2015).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  As will be discussed in more detail below, the Board observes that the examination reports describe the Veteran's reported functional impairment.  Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the examiners discussed the functional effects of the Veteran's hearing problems in the examination reports.  For these reasons, the Board concludes that the reports of the July 2010, July 2012, and October 2015 examinations provide an adequate basis for a decision.  

The Veterans Law Judge who conducted the February 2015 Board hearing explained the issues for which the hearing was being conducted and asked questions designed to elicit information relevant to the claims.  These actions provided an opportunity for the appellant to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

The evidence of record provides sufficient information to adequately evaluate the claim.  Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7. Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.

Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  38 C.F.R. § 4.85(c).  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).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I, for essentially normal acuity, through XI, for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

The Veteran underwent VA examinations in July 2010, July 2012, and October 2015.

The July 2010 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
35
75
LEFT
25
25
25
45
80

The puretone threshold average was 39 decibels in the right ear and 44 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear.  In terms of functional impairment, the examiner noted that the Veteran has difficulty understanding speech in noise.  The above audiological findings show Level I hearing acuity in the right ear and Level I hearing acuity in the left ear under Table VI.  Under Table VII, these findings do not warrant a compensable rating.  No exceptional pattern of hearing impairment was shown.

The July 2012 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
45
70
LEFT
20
25
30
55
75

The puretone threshold average was 37.5 decibels in the right ear and 46.25 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear.  In terms of functional impairment, the examiner noted that the Veteran has difficulty answering the phone due to his hearing loss.  The above audiological findings show Level I hearing acuity in the right ear and Level I hearing acuity in the left ear under Table VI.  Under Table VII, these findings do not warrant a compensable rating.  No exceptional pattern of hearing impairment was shown.

The October 2015 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
30
70
75
LEFT
30
30
30
70
80

The puretone threshold average was 51.25 decibels in the right ear and 52.5 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 72 percent in the right ear and 68 percent in the left ear.  In terms of functional impairment, the examiner noted that the Veteran has difficulty hearing and requires hearing aids to communicate.  The above audiological findings show Level V hearing acuity in the right ear and Level V hearing acuity in the left ear under Table VI.  Under Table VII, these findings warrant a rating of 20 percent.  No exceptional pattern of hearing impairment was shown.

The Board acknowledges the contentions put forth by the Veteran regarding the impact his service-connected bilateral hearing loss has on his ability to understand speech in noise.  However, as noted previously, because disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.  Therefore, when applying the audiological examination test results, the Board is compelled to conclude that the preponderance of the evidence is against granting entitlement to a compensable disability rating prior to October 30, 2015, or a rating in excess of 20 percent at any point on or after that date.  There is no competent evidence of record to refute the examination findings.

The Board has considered the doctrine of reasonable doubt.   However, as the preponderance of the evidence is against this claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, entitlement to a compensable disability rating for bilateral hearing loss prior to October 30, 2015, and a rating in excess of 20 percent on or after October 30, 2015, is not warranted during any portion of this appeal.

In reaching this conclusion, the Board also has considered whether the appellant is entitled to an increased level of compensation for the disability at issue on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2015).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected bilateral hearing loss is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for the appeals period.

Specifically, as discussed above, the relevant hearing loss criteria contemplate the Veteran's puretone and speech discrimination scores as well as his own descriptions of how this disability impacts his ordinary conditions of daily life.  The evidence does not indicate the presence of any impairment that cannot be classified in one of the above categories.  

The Board, therefore, has determined that the available schedular evaluation for the service-connected bilateral hearing loss in this claim is adequate.  Therefore, referral of the bilateral hearing loss disability in this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

III.  Service Connection

The Veteran has claimed entitlement to service connection for prostate cancer.  He essentially contends that this disability occurred as a result of in-service herbicide exposure when he was stationed in Thailand.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.   38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015).

To establish a right to compensation for a present disability, 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for chronic disabilities, such as malignant tumors, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  In some instances, service connection for chronic disabilities may be established based on a continuity of symptomatology from the time of manifestation.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)).

Under 38 C.F.R. § 3.309(e), presumptive service connection based on herbicide exposure is available, in relevant part, for prostate cancer.  

VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand."  Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases anytime between February 28, 1961 and May 7, 1975.  See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR); Compensation and Pension Bulletin, May 2010.  In such cases, herbicide exposure is conceded for individuals who served in the Air Force as security policemen, as security patrol dog handlers, as members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.  

In the case at hand, the Veteran's service personnel records reflect that he was stationed as a cook at the Royal Thai Air Force Base (RTAFB) in U-Tapao, Thailand, from June 4, 1969, to July 25, 1970.  The Veteran contends that he served near the perimeter at this base.  The record also contains a January 2015 affidavit from someone else who served at that base and describes the layout of the base, and the Veteran has submitted a diagram of the U-Tapao RTAFB.

As summarized in the February 2015 Board hearing testimony, the Veteran contends that his duties took him to the perimeter of the base.  Specifically, it was noted that the Veteran worked at the kitchen that was on the flight line on the maintenance side of the base, and that "everyone who worked on the flight-line side had to take the north access road every day or night to get to work."  He reported that he would "walk east down the road.  Just follow the road around the north side of the base and then back to the west side, just kind of a half u or a u."  He endorsed his representative's characterization that "when you left the barracks, you walked through base to the main gate.... And then you followed the perimeter fence around the north side...."  He reported that he spent approximately half of his time in the east side chow hall kitchen and about half of his time in the in-flight kitchen.  His representative also noted that the January 2015 affidavit described the north access road as running right between the north end of the runway and an off base public access road and estimated that there were about 100 to 150 feet between the north access road and the public road off base.  The diagram of the U-Tapao RTAFB illustrates the relative locations of the kitchens and the base's perimeter.

The Board considers the Veteran competent to give evidence about matters of which he has personal knowledge; for example, he is competent to describe the route he took between his barracks and the kitchens at which he performed his duties.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds the Veteran's testimony in the case at hand, which includes highly specific descriptions of his route to and from the kitchens, is highly credible and is not contradicted by the information that is contained on the map of the base or by other evidence of record.  The Board will therefore resolve reasonable doubt and find that the Veteran's duties took him to the perimeter of the U-Tapao RTAFB and that he was, in fact, exposed to herbicides while stationed in Thailand.

Having found that the Veteran was, in fact, exposed to herbicides during service, the Board finds that entitlement to service connection for prostate cancer based on the presumed link between herbicide exposure and prostate cancer is warranted.  


ORDER

Entitlement to an increased rating for bilateral hearing loss, rated as 0 percent disabling prior to October 30, 2015, and as 20 percent disabling on and after that date, is denied.

Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, is granted.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs