Citation Nr: 1728484 Decision Date: 07/20/17 Archive Date: 07/27/17 DOCKET NO. 10-29 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an upper respiratory disability. 2. Entitlement to service connection for a variously diagnosed skin disability, to include malignant melanoma and actinic keratosis. 3. Entitlement to service connection for hypertension. 4. Entitlement to a compensable rating for right ear hearing loss prior to May 10, 2010, and for bilateral hearing loss from that date. REPRESENTATION Appellant represented by: John M. Dorle, Agent WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1971 to March 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for right ear hearing loss rated 0 percent, effective March 22, 2007 and denied service connection for a respiratory disability, a variously diagnosed skin disability, and hypertension. In December 2009, a hearing was held before a Decision Review Officer (DRO). In May 2010, the RO granted service connection for left ear hearing loss, effective May 10, 2010 and continued the 0 percent rating [for bilateral hearing loss]. In September 2015, a hearing was held before the undersigned in Washington, D.C.; a transcript is associated with the record. In February 2016 these matters were remanded for further development. The issues of service connection for an upper respiratory disability, a variously diagnosed skin disability and hypertension are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDING OF FACT Prior to May 10, 2010, the Veteran's right ear hearing acuity is not shown to have been worse than level II in the right ear; from that date, his hearing acuity is not shown to have been worse than level II in either ear. CONCLUSION OF LAW A compensable rating for right ear hearing loss prior to May 10, 2010 or for bilateral hearing loss rating from that date is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (Code) 6100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A June 2010 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; and a March 2012 supplemental SOC (SSOC) readjudicated this matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. During the September 2015 hearing, the undersigned identified the issues on appeal and the elements necessary to substantiate the claims, and suggested submission of evidence that could assist in substantiating the claims. A deficiency in the conduct of the hearing is not alleged. Notably, following the hearing the case was remanded for development to assist the Veteran in substantiating his claims. The duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. He was afforded VA examinations in June 2008, May 2010, March 2015, and July 2016. The reports of those examinations contain sufficient information to allow for consideration of this matter, and the Board finds that no further development of the evidentiary record in this matter is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. Compensation is payable for combinations of hearing loss in one ear service-connected and nonservice-connected hearing loss in the other ear as if both disabilities were service connected, provided the service connected hearing loss is compensable to a degree of 10 percent or more (i.e., Level X or XI) and the nonservice-connected hearing loss is not the result of the Veteran's own willful misconduct and meets the criteria 38 C.F.R. § 3.385. 38 C.F.R. § 3.383(a)(3). At the outset, the Board observes that the Veteran did not have a hearing loss disability (as defined in 38 C.F.R. § 3.385) in the left ear prior to the May 2010 VA examination. Thus, the provisions of 38 C.F.R. § 3.383 (a)(3) do not apply, and the left ear is assigned Level I hearing acuity in determining the appropriate rating for the right ear hearing loss on the September 2007 and June 2008 audiometry. September 2007 VA audiometry revealed that right ear puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 15 40 30 25 Speech audiometry revealed speech recognition ability of 88 percent in the right ear. Under Table VI, the Veteran had level II hearing acuity in the right ear. Considered with the level I hearing acuity assigned for the left ear, such acuity warrants a 0 percent rating under Table VII. On June 2008 VA examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 40 35 28 Speech audiometry revealed speech recognition ability of 84 percent in the right ear. Under Table VI, the Veteran had level II hearing acuity in the right ear. Considered with the level I hearing acuity assigned for the left ear, this acuity warrants a 0 percent rating under Table VII. The Veteran reported difficulty understanding speech when someone spoke to his right, with background noise, and when he could not see the speaker. On May 2010 VA examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 50 40 34 LEFT 15 20 25 20 20 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 90 percent in the left. Under Table VI, the Veteran had level II hearing acuity in each ear, warranting a 0 percent rating under Table VII. He reported difficulty understanding speech. The audiologist noted that the Veteran's hearing loss affected his occupational and social environments. On March 2015 VA examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 55 55 43 LEFT 25 25 25 30 26 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left. Under Table VI, the findings reflect level II hearing acuity in each ear, warranting a 0 percent rating under Table VII. The Veteran reported difficulty hearing his wife. On July 2016 VA examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 60 60 48 LEFT 25 30 35 40 33 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left. Under Table VI, such findings reflect level II hearing acuity in each ear, warranting a 0 percent rating under Table VII. The Veteran reported that he worked in sales and lost his job in June 2016 because he had difficulty hearing on the phone and in the noisy environment at work. He related that co-workers had to send written instead of verbal instructions, and that he could not concentrate around loud noises. The audiologist opined that the Veteran's hearing loss did not preclude him from gainful employment, however, he would have difficulty in a position that required acute hearing. The Veteran has submitted a December 2015 opinion-statement by Dr. Bash. It primarily discusses whether service connection is warranted for the Veteran's hearing loss, (a matter settled in 2010) and is not material to the matter of the rating for the hearing loss. The record does not include any further pertinent audiometry during the period under consideration. As the assignment of a disability rating for hearing impairment is derived by 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 be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on all official audiometry fall squarely within the parameters of the criteria for a 0 percent rating. Accordingly, the Board is compelled to conclude that the preponderance of the evidence is against the claim for increases in the ratings for the right ear and bilateral hearing loss. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has considered whether the claim warrants referral for consideration of an extraschedular increased rating. While the Board acknowledges the Veteran's assertions regarding functional impairment due to his hearing loss (and he is competent to describe such impairment), the problems he describes (loss of job partly due to difficulty hearing on the phone and in a noisy environment, understanding conversations in a crowded/noisy room with background noise, and hearing women's voices) are encompassed by the schedular ratings assigned. Thus, those criteria are not inadequate, and referral for extraschedular consideration is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). There is likewise no evidence that the Veteran's bilateral hearing loss renders him individually unemployable. The July 2016 VA examiner opined that the Veteran's hearing loss would not preclude him from gainful employment (but that he would have difficulty in a position that required acute hearing). Therefore, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record in the context of the instant claim. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). ORDER A compensable rating for right ear hearing loss prior to May 10, 2010 and for bilateral hearing loss from that date is denied. REMAND The Veteran alleges that he has a variously diagnosed respiratory disability which either became manifest in service, or is due to his exposure to Agent Orange. The opinion provided on July 2016 VA respiratory examination is incomplete and inadequate for rating purposes. The examiner noted that the Veteran had an upper respiratory infection during service (in 1971), and opined that the Veteran's diagnosed emphysema is not causally related to his upper respiratory infection in service because it was not diagnosed until 2016. Notably, the record shows a diagnosis of COPD prior to 2016. A January 2017 VA treatment record also notes a diagnosis of asthma and an opinion by the provider (without supporting rationale) that the asthma is likely related to environmental exposures in service. Furthermore, the Board's February 2016 remand instructed the examiner to specifically discuss two lay statements to the effect that the providers have known the Veteran since 1978 and 1988, respectively, and that he has had respiratory problems continuously during the intervening period. As the examiner did not do so, corrective action is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran also contends that he has hypertension due to exposure to Agent Orange. He served in Vietnam, and is presumed to have been exposed to herbicides by virtue of such service. The Board notes that the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2006 (2006 Update) concluded that there is "limited or suggestive" evidence of an association between exposure to herbicides. Given the 2006 Update, the Board finds that there is an "indication" that hypertension may be associated with exposure to herbicide so as to require a VA medical opinion as to whether the Veteran's hypertension is indeed related to exposure to herbicides. The opinion provided on July 2016 VA hypertension examination is incomplete and inadequate for rating purposes. The Board's February 2016 remand specifically instructed the examiner to note the 2006 NAS Update and its findings related to hypertension and discuss its applicability. As this was not done, corrective action is necessary. The Veteran submitted a supporting private medical opinion in connection with the claim of service connection for hypertension in December 2015. The provider, a physician, noted the 2006 NAS Update and its findings, but the opinion is conclusory. It does not include rationale that cites to supporting factual data, and is inadequate. The Veteran also contends that he has a skin disorder due either to exposure to sunlight in service or alternatively to exposure to Agent Orange. Postservice treatment records show treatment for malignant melanoma, actinic keratosis, and seborrheic keratosis. Regarding the theory that a chronic skin disability is due to exposure to sunlight in service, the Veteran states that while stationed in Vietnam he worked 10-12 hour shifts on guard duty, sustaining severe sunburns. He notes that he is fair-skinned and stayed out of the sun both before and after service (and following service worked in an office). He has submitted multiple copies of handwritten letters he sent to his family during service describing the intense heat he endured, and also submitted an article regarding a nexus between exposure to sun and skin cancer. It may reasonably be conceded that duties associated with the Veteran's service in Southeast Asia exposed him to tropical sun and sunburns. In a December 2015 statement, a private neuro-radiologist opined that the Veteran's current actinic keratoses and malignant melanoma are related to his exposure to sun in service. Thus there is medical evidence (albeit without adequate rationale) supporting the Veteran's theory of entitlement to some extent, and further development was sought. The opinion provided on July 2016 VA skin examination is incomplete and inadequate for rating purposes. The Board's February 2016 remand specifically instructed the examiner to discuss the relationship between the Veteran's skin conditions and his exposure to sunlight and/or exposure to herbicides. The examiner did not discuss herbicide exposure relative (with rationale) to the Veteran's malignant melanoma. Furthermore, the examiner was instructed to express agreement or disagreement with the 2015 private neuro-radiologist opinion. As the examiner did not do so, corrective action is necessary. Accordingly, the case is REMANDED for the following : 1. The AOJ should arrange for a respiratory diseases examination of the Veteran to determine the nature and likely etiology of his respiratory disability. The entire record must be reviewed by the examiner in conjunction with the examination. On examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each respiratory disability entity found/shown in the record. (b) Please identify the likely etiology of each respiratory disability entity diagnosed? Specifically, is it at least as likely as not (a 50% or greater probability) that it is related to the Veteran's service, to include an upper respiratory infection treated, or exposure to herbicides, therein? The examiner must include rationale with all opinions. The rationale must account for the Veteran's statements (and other lay reports noted above and an August 2015 statement from his spouse) of postservice continuity of symptoms. 2. The AOJ should also arrange for the Veteran to be examined by an appropriate physician to determine the likely etiology of his hypertension. The record must be reviewed by the examiner in conjunction with the examination. Following examination of the Veteran and review of his record, the examiner should provide an opinion that responds to the following: What is the likely etiology for the Veteran's hypertension? Specifically, is it at least as likely as not (a 50% or greater probability) that it is related to his service, to include as due to his exposure to herbicides therein? The opinion must include rationale. The rationale must acknowledge the 2006 NAS Update and its findings related to hypertension, i.e., that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension and discuss its applicability, if any, in the instant case. 3. The AOJ should also arrange for a dermatology examination of the Veteran to determine the likely etiology of his claimed skin disability. The entire record must be reviewed by the examiner in conjunction with the examination. Following examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) Please identify each skin disability entity found/shown by the record during the pendency of the instant claim (to include malignant melanoma and actinic and seborrheic keratoses). (b) Please identify the likely etiology for each skin disability entity diagnosed? Specifically, is it at least as likely as not (a 50% or greater probability) that it is related to the Veteran's service, to include as due to either his exposure to sunlight and/or exposure to herbicides (or to both) therein? If not please identify the etiology considered more likely. The examiner must include rationale with all opinions. The rationale must include comment on (expression of agreement or disagreement (with rationale) with the December 2015 opinion by a private neuro-radiologist submitted by the Veteran. 4. The AOJ should then review the record, arrange for any further development deemed necessary, and readjudicate the remaining claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his agent opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs