Citation Nr: 1754021	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  10-48 348	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to an initial compensable rating for the service-connected bilateral hearing loss.

2. Entitlement to service connection for colon cancer.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Freeman, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1966 to December 1969 including service in Vietnam.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Nashville, Tennessee RO in March 2010.

The Board previously remanded these claims for additional development April 2013.


FINDINGS OF FACT

1. Throughout the period of the appeal, the Veteran's bilateral hearing loss has been manifested by no more than Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear; worse hearing has not been shown.

2. The weight of the evidence is against a finding that the Veteran's colon cancer is due to or the result of his active service, to include his presumed exposure to herbicides and/or his claimed exposure to radiation.


CONCLUSIONS OF LAW

1. Throughout the period of the appeal, the criteria for a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86(a) (2017).

2. The criteria for service connection for colon cancer have not been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Regarding the hearing loss, when a claim has been granted and there is a disagreement as to "downstream" questions, such as the initial rating, the claim has been substantiated and there is no need to provide additional VCAA notice and the Court will not presume that a notice error is prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007).  The veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  That burden has not been met in this case as the Veteran has not alleged such prejudice.

Regarding the colon cancer, VA letters in December 2009, January 2010 and December 2010 provided adequate notice regarding the matter on appeal.  The Board finds that further notice regarding the matters on appeal is not necessary.

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting in the procurement of service treatment records and all relevant pre-and post-service treatment records, and by providing an examination, when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In this regard, the record reflects that VA has made reasonable efforts to obtain relevant records including service treatment records, post-service VA treatment, and private treatment records.  The Veteran has not identified any additional outstanding records.  The Veteran has been afforded pertinent VA examinations in March 2010 and May 2016.  The examiners provided medical opinions considering the Veteran's prior medical history, lay statements, and described the disabilities with sufficient detail so that the claim could be fully evaluated.  The Board has carefully reviewed the record and determines there is no additional development needed for adjudication.

As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.


Legal Criteria-Bilateral Hearing Loss

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.

In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged rating during those periods.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Code 6100.  Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993).  Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz).  38 C.F.R. § 4.85.  This results in a Pure tone Threshold Average for each ear.  Id.  The Pure tone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85 and the intersection of the scores provides the percentage of disability.  Id.
An exceptional pattern of hearing impairment occurs either when the pure tone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86 (a), or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 
70 decibels or more at 2000 Hertz, 38 C.F.F. § 4.86(b).  If either of these provisions applies, each ear is evaluated separately.  See 38 C.F.R. § 4.86.  The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral.  When 38 C.F.R. § 4.86 (b) is applicable, the assigned numeral is elevated to the next higher Roman numeral.  Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.  See 38 C.F.R. § 4.85 (c).

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.


Factual Background and Analysis

The Veteran contends that his bilateral hearing loss disability is more severe than the current disability rating reflects.

The Veteran underwent a VA examination in March 2010.  The Veteran said he often misunderstands his clients and indicated that it can be embarrassing because he needs to get closer in order to understand.  He exhibited pure tone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
30
40
75
LEFT
35
45
35
40
60

The average score for hearing loss on examination for the right ear was 46 decibels and 45 decibels in the left ear.
Speech recognition ability was 84 percent in the right ear and 84 percent in the left ear, using the Maryland CNC word lists.  The examiner diagnosed bilateral sensorineural hearing loss.

Applying the above results from the October 2010 VA examination report to Table VI of the Rating Schedule shows Level II hearing acuity in the right ear and Level II hearing acuity in the left ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  The pure tone thresholds do not demonstrate that consideration of an exceptional pattern of hearing is required.  See 38 C.F.R. § 4.86.  Using the highest levels of hearing acuity and applying them to Table VII of the Rating Schedule, Level II hearing acuity in the right ear and Level II hearing acuity in the left ear results in a noncompensable disability rating for bilateral hearing impairment.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

In a statement in support of his claim, the Veteran indicated he worked with heavy machinery in service and as a result he finds it difficult hearing in every situation.  See VA Form 21-4138, dated in January 2010.

At a May 2016 VA audiology examination, the Veteran reported difficulty hearing and understanding in all situations.  On examination, pure tone thresholds, in decibels, were reported as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
50
45
55
80
LEFT
40
55
45
50
65

The average score in hearing loss for the right ear was 58 decibels and 54 decibels in the left ear.  Speech recognition ability was 82 percent in the right ear and 86 percent in the left ear, using the Maryland CNC word lists.  The examiner diagnosed bilateral sensorineural hearing loss.  

Applying the above results from the May 2016 VA examination report to Table VI of the Rating Schedule shows Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.

The pure tone thresholds do not demonstrate that consideration of an exceptional pattern of hearing is required.  See 38 C.F.R. § 4.86.  Using the highest levels of hearing acuity and applying them to Table VII of the Rating Schedule, Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear results in a noncompensable disability rating for bilateral hearing impairment.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

The examiner opined that the Veteran's hearing loss impacted his ordinary conditions of daily life, including the ability to work, in that he complained of problems hearing in all listening situations.

The evidence thus demonstrates that the Veteran's bilateral hearing loss disability does not meet the numeric criteria for a compensable disability rating under Diagnostic Code 6100 at any point during the relevant appeal period, even when considering potential applicability of staged ratings.  Accordingly, an initial compensable disability rating for service-connected bilateral hearing loss may not be awarded on a schedular basis.

Based on these findings the Board finds that the preponderance of the evidence is against assignment of an initial compensable rating for hearing loss during any period at issue in this appeal.  The Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment, but they do not apply because the Veteran did not demonstrate an exceptional pattern of hearing impairment.

The Board acknowledges the Veteran's assertions that his disability is entitled to a compensable rating.  Consideration has also been given to the lay statements of record regarding the Veteran's hearing loss.  The Veteran statements were found to be competent and credible with regard to the observable symptoms regarding the Veteran's hearing loss.  Layno v. Brown 6 Vet. App. 465, 469 (1994).  However, the examination records reflect no more than Level IV auditory acuity in the right ear and Level II auditory acuity in the left ear throughout the appeal period.  Such findings do not support assignment of a compensable evaluation.  In weighing the relevant medical and lay evidence of record, the Board finds that the Veteran's diminished hearing, to include the audiometric findings, fall squarely within the criteria for a noncompensable rating under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100.  Therefore, the Board concludes that a compensable schedular evaluation is not warranted.

Additionally, with respect to an extraschedular rating under 38 C.F.R. § 3.321 for his increased disability claim, the applicable rating criteria contemplate all impairment resulting from his bilateral hearing loss.  The criteria reasonably describe the Veteran's disability level and symptomatology, specifically his complaints of difficulty hearing.  As already discussed, the manifestations of the Veteran's hearing loss all concern difficulty in hearing.  He has not described any unusual effects not contemplated by the rating criteria, which are designed to compensate for different levels of decreased hearing.  The assigned schedular rating is, therefore, adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321 (b)(1). Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for the Veteran's bilateral hearing loss disability.

Service Connection- Colon Cancer

The Veteran contends his colon cancer is due to herbicide and radiation exposure during active military service.  As noted above, he had service in Vietnam, and may be presumed to have been exposed to herbicides.  The Veteran has not provided sufficient information to allow verification of any exposure to radiation.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  Generally, the evidence 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 between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310 (b).

The Veteran's entrance examination conducted in April 1966 and his exit examination dated in November 1969 are negative for any complaint, treatment, or diagnosis of a colon condition.

Private treatment records from Jackson Madison County General Hospital, note the Veteran underwent a colonoscopy and a cecal mass was noted with biopsy, which confirms a moderately differentiated cecal carcinoma in November 2002, 32 years after released from military service.

A December 2003 colonoscopy showed normal post right hemicolectomy except for left-sided diverticular.  See Jackson Clinic Medical Record, dated in February 2011.

VA treatment records from Memphis VA Medical Center showed a normal colonoscopy in September 2015.

The Veteran underwent a VA examination in May 2016.  The examiner noted that there is no evidence based on a review of the Veteran's service treatment records and the "weight" of the current medical literature to definitely support a link between Veteran's military service and his diagnosis of Cecal Adenocarcinoma in 2002.  The examiner further opined that "Up To Date" article entitle "Colorectal cancer: Epidemiology, risk factors, and protective factors" does not report any known cause and effect of relationship between Agent Orange exposure and the development of subsequent gastrointestinal neoplasms.

The Veteran claims that he was exposed to radiation as a result of being involved in "tearing apart a building with a jack hammer" during service and recalled being told about possible radiation exposure with such.  As noted above, the examiner opined that current medical literature indicates a cause and effect risk relationship between higher doses of radiation delivered in a focused manner to the abdominal cavity and the subsequent development of colorectal cancer.  However, the VA examiner opined that the pertinent evidence of record does not document any such focused radiation exposure to the abdomen during military service, nor does the Veteran report any such focused radiation exposure.

The Board hereby notes that colorectal cancer is not among the cancers for which service connection will be presumed based on Vietnam-related herbicide exposure, as medical research relied upon by VA when making such regulations found insufficient evidence to support a casual correlation between herbicide exposure and colorectal cancer.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308-01 (Apr. 11, 2014).

Likewise, as set forth above, there is no probative medical evidence suggesting a direct nexus between the Veteran's colon cancer and service, as the Veteran developed this cancer many years after service and does not assert that his disease manifested during or soon after service.  Moreover, while the Veteran asserts that he has colon cancer that is related to his presumed in-service herbicide exposure in Vietnam and radiation exposure while station at the MacDill Air Force Base, he has no known or claimed medical expertise, and thus lacks the requisite medical expertise to identify the biological nature of his cancer cells or establish a causal relationship between his cancer and service; thus, his lay opinions on this medical matter lacks probative value.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues).

Furthermore, there is no medical evidence of record suggesting a relationship between the Veteran's cancer and service, to include any herbicide or radiation exposure.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In that regard, the Veteran's recent VA treatment records, do not suggest any potential correlation between the Veteran's claimed cancer and service, as they contain no medical nexus opinions intimating such a relationship, and as they continue to characterize the Veteran's cancer as primary colorectal cancer.  Thus, the Board notes that these treatment records do not aid the Veteran in substantiating his claim.

Upon a review of the entire record, the Board has determined the Veteran's claim must be denied.  In this regard, the Board notes that there is no medical evidence linking the Veteran's colon cancer diagnosis to service, to include his presumed herbicide or radiation exposure.  Instead, the first indication of colon cancer appears in December 2002, 32 years following the Veteran's discharge from service.  The sole medical evidence of record addressing this issue, the May 2016 VA examination report, weighs against the Veteran's claim.

Although the Veteran may sincerely believe his colon cancer was incurred in military service, or alternatively was caused by an in-service radiation exposure, the Board finds the Veteran's lay opinion concerning these matters, which require medical expertise, is outweighed by the expert VA medical opinion weighing against the claim.

In reaching its decision, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence weighs against the claim.  Accordingly, the claim must be denied.


ORDER

Throughout the period of the appeal, a compensable disability rating for bilateral hearing loss is denied

Service connection for colon cancer is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs