Citation Nr: 1337166 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-19 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a chronic bilateral hip disability. 2. Entitlement to service connection for colon cancer, including due to herbicide exposure. 3. Entitlement to service connection for a chronic prostate disability, identified as benign prostatic hypertrophy, including due to herbicide exposure. 4. Entitlement to a compensable initial rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1952 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in July 2008, June 2009, and January 2010 by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board, among other things, remanded the issues on appeal for additional development in February 2013. The issues of entitlement to service connection for left knee, right knee, and low back disabilities were also remanded by the Board in February 2013; however, service connection was granted for these issues in a May 2013 rating decision and the appeal as to these matters are resolved. The Veteran's October 2013 correspondence may be construed as raising a claim for entitlement to an increased rating for his left epididymitis, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A chronic bilateral hip disability was not manifest during active service, arthritis was not manifest within the first post-service year, and a present bilateral hip disability is not shown to have developed as a result of an established event, injury, or disease during active service. 2. Colon cancer was not manifest during active service or within the first post-service year, is not a disease for presumptive service connection as a result of herbicide exposure, and is not shown to have developed as a result of an established event, injury, or disease during active service. 3. A chronic prostate disability, including benign prostatic hypertrophy, was not manifest during active service, benign prostatic hypertrophy is not a disease for presumptive service connection as a result of herbicide exposure, and a present prostate disability is not shown to have developed as a result of an established event, injury, or disease during active service. 4. The Veteran's bilateral hearing loss is manifested by no more than level I hearing acuity in the right ear and level I hearing acuity in the left ear. CONCLUSIONS OF LAW 1. A chronic bilateral hip disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. Colon cancer was not incurred in or aggravated by service nor may service connection be presumed as a result of herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A chronic prostate disability, including benign prostatic hypertrophy, was not incurred in or aggravated by service nor may service connection be presumed as a result of herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in January 2008, March 2008, December 2008, and September 2009. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, private treatment records, and the Veteran's statements and testimony in support of his claims. The development requested on remand in February 2013 has been substantially completed. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of that veteran's service as shown by the service record, the official history of each organization in which that veteran served, medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, including arthritis and malignant tumors, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). VA regulations provide that certain disorders, including prostate cancer, associated with herbicide agent exposure in service may be presumed service connected. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. Colorectal cancer and benign prostatic hypertrophy are not presently listed among these enumerated diseases. VA, under the authority of the Agent Orange Act of 1991, has also determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for disorders which are not enumerated by regulation. It is noted that consistent with its findings in Update 2008, NAS in Update 2010, found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and colorectal cancer. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("The existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association."). The United States Court of Appeals for the Federal Circuit (hereinafter "the Federal Circuit") has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). In this case, the Veteran contends that he has a chronic bilateral hip disability as a result of his duties as an aircraft mechanic during active service. He asserted that he had developed degenerative joint disease and pain due to having crawled and climbed over aircraft over the course of his military career. He also asserted that he had developed colon cancer and a prostate disability as a result of active service, to include as a result of herbicide exposure during service in the Republic of Vietnam. Service treatment records show the Veteran received treatment for a right testicle disorder, but are negative for complaint, treatment, or diagnosis for a hip disability, colon cancer, or a prostate disability. A July 1971 retirement examination revealed an absent right testicle and small, asymptomatic hemorrhoidal tags, and normal lower extremities. Service personnel records show the Veteran's duties included travel to the Republic of Vietnam. Post-service treatment records show that in March 1994 the Veteran complained of urinary hesitancy, diminished force of urine stream, terminal dribbling, and nocturia for about a year. The diagnosis was symptomatic benign prostatic hypertrophy, rule out urethral stricture. Records dated in September 1996 noted adenocarcinoma of the colon was found upon routine flexible sigmoidoscopy. X-ray studies dated in June 2007 revealed mild osteoarthritis. VA examination in May 2013 included a diagnosis of mild bilateral hip degenerative joint disease. The examiner found the disorder was less likely incurred in or caused by the claimed in-service injury, event, or illness. It was noted that upon examination the Veteran reported he could not recall having had a hip problem in service and that the evidence demonstrated the disorder developed after 2004 and was due to age. VA examination in July 2013 included diagnoses of prostate hypertrophy and intestinal neoplasm. The examiner found the disorders were less likely incurred in or caused by the claimed in-service injury, event, or illness. The pertinent evidence of record was summarized and medical literature addressing diseases associated with herbicide exposure was cited. The examiner noted that there was no evidence of benign prostatic hypertrophy or colon cancer for many years after service, that the Veteran's benign prostatic hypertrophy was as likely as not due to the normal process of aging, and that there was no medical literature to support that herbicide exposure causes benign prostatic hypertrophy or colon cancer. Based upon the evidence of record, the Board finds that a chronic bilateral hip disability, colon cancer, and a chronic prostate disability, including benign prostatic hypertrophy, were not manifest during active service, that hip arthritis and colon cancer were not manifest within the first post-service year, that colon cancer and benign prostatic hypertrophy are not diseases for presumptive service connection as a result of herbicide exposure, and that present bilateral hip, colon cancer, and prostate disabilities are not shown to have developed as a result of an established event, injury, or disease during active service. The opinions of the May 2013 and July 2013 VA examiners in this case are persuasive and based upon adequate rationale. The opinions are shown to have been based upon a thorough review of the evidence of record and adequate consideration of the Veteran's statements. The Board further finds that the Veteran is competent to provide evidence as to observations and some medical matters, but that his statements are, at most, conclusory assertions of a nexus between his present disabilities and service. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). Therefore, the claims for entitlement to service connection must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against these claims. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. See 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2012). Upon award of service connection, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). VA regulations provide 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 (2012). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. VA audiometric examinations for rating purposes are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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 will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Court has held that the assignment of disability ratings for hearing impairment are to be 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). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VIA* Numeric designation of hearing impairment based only on puretone threshold average Puretone Threshold Average 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI *This table is for use only as specified in §§4.85 and 4.86. Table VII Percentage evaluation for hearing impairment (Diagnostic Code 6100) Poorer Ear Better Ear XI 100 X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I 38 C.F.R. § 4.85 (2012). In this case, the Veteran contends that his hearing loss disability was more severe than indicated by his noncompensable rating. In statements and testimony in support of his claim he described having difficulty hearing and noted that he wore hearing aids. Service connection is established from December 12, 2007, based upon an initial claim. On VA authorized audiological evaluation in June 2008, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 65 70 46 LEFT 35 20 65 80 50 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 percent in the left ear. VA audiology evaluation in June 2009 revealed, pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 65 70 46 LEFT 30 20 65 80 50 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 percent in the left ear. ON VA authorized audiological evaluation in May 2013, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 65 75 48 LEFT 35 30 70 75 54 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 82 percent in the left ear. The diagnosis was sensorineural hearing loss in the right and left ears. It was noted the Veteran stated he had difficulty understanding speech in most situations, but that his moderate loss of auditory sensitivity combined with his good speech recognition ability would allow him to communicate effectively in all employment situations, especially when using his VA provided amplification systems. Based upon the evidence of record, the Board finds that the May 2013 VA audiological evaluation demonstrates the Veteran's service-connected bilateral hearing loss is manifested by no more than level II hearing acuity in the right ear and level IV hearing acuity in the left ear. Such designations equate to a noncompensable (0 percent) evaluation. The audiometric testing of record is shown to have adequately evaluated his hearing ability consistent with VA regulations. The examiner acknowledged that the Veteran reported having had difficulty understanding speech in most situations, but the examiner found that his moderate loss of auditory sensitivity combined with his good speech recognition ability would allow him to communicate effectively in all employment situations, especially when using his VA provided amplification systems. See Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Therefore, entitlement to a compensable rating is not warranted. In reaching the above conclusions, the Board has considered the Veteran's statements with regard to his hearing loss symptoms and notes he is competent to provide such statements regarding symptoms like difficulty hearing that are observable symptoms. VA regulations, however, provide rating criteria that require medical expertise for findings that are not readily observable by a lay person. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to the severity of an internal medical process like sensorineural hearing loss. As such, the Board has considered the Veteran's reported hearing loss symptoms in evaluating his assigned rating. In determining the severity of the Veteran's overall disability, however, the objective medical findings and opinions provided by the May 2013 VA examiner, who specifically noted that the claims folder (which included the Veteran's contentions) had been reviewed, are accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board further finds there is no evidence of any unusual or exceptional circumstances related to the service-connected disorder that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. The service-connected hearing loss disability is adequately rated under the available schedular criteria and the objective findings of impairment are well documented. In fact, the May 2013 VA examiner specifically addressed the effects of the demonstrated hearing loss on his employment. The Court in Thun v. Peake, 22 Vet. App. 111 (2008), has established a three-step inquiry for determining whether a Veteran is entitled to extraschedular rating consideration. First, determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, then determine whether the claimant'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. The Board finds the overall evidence of record in this case is not indicative of a marked interference with employment as a result of a service-connected disability or disabilities. The May 2013 VA examiner's opinion as to this matter is persuasive. The examiner is shown to have conducted a thorough examination of the Veteran and to have considered all evidence of record. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to service connection for a chronic bilateral hip disability is denied. Entitlement to service connection for colon cancer, including due to herbicide exposure, is denied. Entitlement to service connection for a chronic prostate disability, identified as benign prostatic hypertrophy, including due to herbicide exposure, is denied. Entitlement to a compensable initial rating for bilateral hearing loss is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs