Citation Nr: 1751458 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-40 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for multiple myeloma. 2. Entitlement to an increased rating for service-connected bilateral hearing loss, currently evaluated as 50 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active duty service from August 1948 to August 1952, with subsequent service in the Marine Corps Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2015, the RO denied a claim for an increased rating for service-connected bilateral hearing loss, evaluated as 50 percent disabling. In March 2016, the RO denied a claim for service connection for multiple myeloma. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran had at least 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. 2. The Veteran has multiple myeloma due to his service. 3. The Veteran is shown to have no worse than Level VI hearing in the right ear and Level XI hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for multiple myeloma have been met. 38 U.S.C. §§ 101, 1110, 1131, 1710, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.6, 17.400 (2016). 2. The criteria for a rating in excess of 50 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran asserts that service connection is warranted for multiple myeloma. He argues that he had service at Camp Lejeune while on active duty, and while performing duties with the Marine Corps reserve. He argues service connection is warranted based on the presumptions for veterans who served at Camp Lejeune, and who are presumed to have been exposed to contaminated drinking water. In December 2006, the Veteran initially filed his claim. In August 2007, the RO denied the claim. There was no appeal, and the RO's decision became final. See 38 U.S.C. § 7105. However, additional service records were subsequently received, and in March 2016, the RO denied the claim after a de novo review, indicating that a new and material analysis was not warranted under 38 C.F.R. § 3.156 (c). The Veteran has appealed. When VA has issued a decision on a claim, and subsequently receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file at the time of the prior decision, VA must reconsider the claim de novo. 38 C.F.R. § 3.156 (c)(1). In such cases, there is no claim to reopen and new and material evidence is not required. Id. Accordingly, the claim for multiple myeloma will be analyzed without regard to the provisions covering "new and material" provisions for reopening of claims. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Under 38 C.F.R. § 3.307 (a)(7) "certain diseases have been associated with exposure to contaminants in the water supply at Camp Lejeune" (i) For the purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(7)(ii). A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307 (a)(7)(iii); see also VA's Adjudication Procedure Manual (VBA Manual M21-1), III.iii.2.E.7.a. Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101 (24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in §3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307 (a)(7)(iv). Under 38 C.F.R. §3.309 (f) "disease associated with exposure to contaminants in the water supply at Camp Lejeune," if a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of §3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d). (1) Kidney cancer. (2) Liver cancer. (3) Non-Hodgkin's lymphoma. (4) Adult leukemia. (5) Multiple myeloma. (6) Parkinson's disease. (7) Aplastic anemia and other myelodysplastic syndromes. (8) Bladder cancer. (emphasis added). The Veteran's service records for his active duty service, to include his separation examination report, dated in July 1952, do not contain any relevant findings or diagnoses. The Veteran's personnel records for his active duty service indicate that he was stationed at Camp Lejeune between about October 1951 and his separation from service in August 1952. The Veteran's personnel records for his service with the Marine Corps Reserve show that he retired in 1979. These records overwhelmingly show that his duties were performed in the state of New York, however, there are notations of service at Camp Lejeune (active duty for training) for two weeks between July 7, 1957 and July 19, 1957 (13 days), July 28, 1968 and August 10, 1968 (14 days), and July 5, 1969 and July 20, 1969 (16 days). As for the post-active duty medical evidence, it shows that the Veteran was first treated for multiple myeloma beginning in 2005, with treatment to include placement of an intermedullary rod in his right thigh. The Board finds that service connection for multiple myeloma is warranted. The Veteran is shown to have met the requirement for presumed exposure to contaminants in the water at Camp Lejeune, as he had at least 43 days of service at Camp Lejeune between 1957 and 1968. Therefore, the requirement that a veteran serve no less than 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, is shown to have been met. Thus, exposure to the contaminants in the water supply systems at Camp Lejeune is presumed. His is shown to have multiple myeloma, a disease for which presumptive service connection is warranted under 38 C.F.R. §3.309 (f) for veterans, or former reservists, who are shown to have been exposed to contaminants in the water supply at Camp Lejeune during military service and who meet the requirements of §3.307(a)(7). Accordingly, service connection for multiple myeloma is granted. As the Board has granted the claim in full, any failure of VA in its duty to assist could be no more than harmless error, and the Veterans Claims Assistance Act of 2000 need not be further discussed. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Increased Rating - Bilateral Hearing Loss The Veteran asserts that he is entitled to a rating in excess of 50 percent for his service-connected bilateral hearing loss. In August 2011, the RO granted service connection for bilateral hearing loss, evaluated as 30 percent disabling. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 30 percent. In November 2012, the Board granted the claim, to the extent that it assigned a 40 percent evaluation for bilateral hearing loss, with an effective date of November 3, 2011. There was no appeal, and the Board's decision became final. See 38 U.S.C. § 7104(b) (2014). In June 2015, the Veteran filed a claim for increased rating. In October 2015, the RO granted the claim, to the extent that it assigned a 50 percent rating, with an effective date of June 15, 2015. The Veteran has appealed the increased rating issue. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in a veteran's favor. 38 U.S.C.A. § 5107(b). The Ratings Schedule provides a table for rating 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 (2017). 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 (2017). See 38 C.F.R. § 4.85(c) (2017). 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) (2017). 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. 38 C.F.R. § 4.86(b) (2017). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). A VA audiological examination report, dated in October 2015, contains audiometric findings that revealed pure tone (air conduction) thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 60 70 85 90 LEFT N/A 105+ 105+ 105+ 105+ These results show an average decibel loss of 76 in the right ear and 105 in the left ear. Speech recognition ability was 88 percent in the right ear, and 0 percent in the left ear. The report notes severe sensorineural hearing loss, bilaterally. The October 2015 VA audiological examination demonstrates that under Table VI of the Rating Schedule, the Veteran's hearing impairment has been manifested by Level III hearing in the right ear, and Level XI hearing in the left ear. See 38 C.F.R. § 4.85, Table VI (2017). Using Table VII, Level III (right) and Level XI (left) hearing acuity in the service-connected ears results in a 20 percent evaluation for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. However, under Table VIA, the Veteran's right ear is manifested by Level VI hearing. Using Table VII, Level VI (right) and Level XI (left) hearing acuity in the service-connected ears results in a 50 percent evaluation for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. As pointed out above, disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann. Thus, based on the audiometric findings, the Veteran is not shown to have met the criteria for a rating in excess of 50 percent. Given the foregoing, a rating in excess of 50 percent for bilateral hearing loss is not warranted at any time during the appeal period. The Veteran is competent to report his hearing loss symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The VA examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. The question is not whether the Veteran has a hearing problem, but the degree of hearing loss. The Board has also considered the adequacy of the Veteran's examination, and that an opinion on the effects of hearing loss on daily functioning may be required in a case where the issue of an extraschedular evaluation has been raised. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, the Veteran has not raised the issue of an extraschedular evaluation, nor does the evidence suggest that such an opinion is warranted in this case. The October 2015 VA examiner noted that the Veteran was a retired maintenance worker, who states that he has the most difficulty hearing in groups. The examiner stated that, given his hearing impairment, he would be expected to have difficulty conversing, especially in the presence of background noise, in groups, and on the telephone, both at the workplace and in social situations. While the Board does not dispute the fact that the Veteran has difficulties with his hearing, the critical question here is the impact of the Veteran's hearing disability on his ability to function in the workforce. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As discussed, there is no basis to find that the regular schedular standards and the assigned disability rating do not adequately compensate the Veteran for any adverse impact caused by his disability. See Thun v. Peake, 22 Vet. App. 111 (2008). A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In summary, there is nothing in the record to suggest a referral for an extraschedular rating is warranted, and Martinak does not provide the basis to obtain yet another VA examination in this case. Accordingly, Veteran's claim for a rating in excess of 50 percent is denied. Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the disability in issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). In this case, the Veteran has not identified any such records, and it appears that all pertinent records have been obtained. In this regard, in September 2015, the Social Security Administration stated that it did not have any records for the Veteran. The Veteran has been afforded a hearing examination. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for multiple myeloma is granted. A rating in excess of 50 percent for service-connected bilateral hearing loss is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs