Citation Nr: 1759909	
Decision Date: 12/22/17    Archive Date: 01/02/18

DOCKET NO.  10-23 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for squamous cell carcinoma of the throat.

2. Entitlement to service connection for left foot hallux valgus deformity, to include as secondary to left foot third toe osteotomy (claimed as left foot deformity, claw toes, osteotomy through the fifth metatarsal, and MP joints dislocation).

3. Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

R. Janofsky, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1969 to February 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008, April 2010, and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).  The August 2008 rating decision denied service connection for squamous cell carcinoma of the throat, the April 2010 rating decision denied service connection for left foot hallux valgus deformity, and the May 2010 rating decision granted service connection for bilateral hearing loss, assigning a noncompensable (zero percent) rating effective April 16, 2010.

In May 2011, the Veteran testified at a videoconference hearing before a Veterans Law Judge only on the issue of service connection for squamous cell carcinoma of the throat.  The May 2011 judge has since retired from the Board and the Veteran was offered an opportunity for a new hearing.  The Veteran subsequently testified before the undersigned Veterans Law Judge during a March 2016 Travel Board hearing regarding all issues on appeal.  Transcripts of those proceedings are associated with the claims file.

The Veteran also initiated appeals of the issue of service connection for tinnitus and service connection for a left foot, third toe osteotomy.  The RO later granted service connection for tinnitus in an April 2013 rating decision.  Moreover, while this case was most recently in remand status, the RO granted service connection for residuals of a left foot, third and fifth toe osteotomy (and associated surgical scars) in a September 2017 rating decision.  Because the Veteran was granted service connection for those disabilities, those issues are no longer on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 
These claims have a long procedural history and have been remanded previously.  Most recently, in July 2016, the Board remanded this case to the RO for additional development.  It has now returned to the Board for appellate review.  Pursuant to the July 2016 remand, the RO obtained the Veteran's outstanding VA treatment records, verified the Veteran's service dates in Korea, conducted the requested development regarding possible herbicide exposure in Korea, and obtained the requested VA examinations and medical opinions.  Thus, the RO substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Although the record contains lay evidence not yet considered by the agency of original jurisdiction (AOJ), the Veteran's representative indicated in September 2017 that the Veteran wished to waive initial review of this evidence by the AOJ in accord with 38 C.F.R. § 20.1304.  Therefore, a remand of this claim is not necessary.  


FINDINGS OF FACT

1. There is no persuasive, competent evidence the Veteran was exposed to herbicide agents during service; and there is no suggestion that his squamous cell carcinoma of the throat is otherwise related to service.

2. The Veteran's left foot hallux valgus deformity and hammer toes are not the result of an injury or disease incurred in or aggravated by active military service; and these left foot conditions were not caused or aggravated by a service-connected condition.

3. The Veteran's service-connected bilateral hearing loss has manifested as auditory thresholds and word recognition scores that are noncompensable.

CONCLUSIONS OF LAW

1. The criteria for service connection for squamous cell carcinoma of the throat have not been met.  38 U.S.C. §§ 1101, 1112, 1113, 1110, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

2. The criteria for service connection for left foot hallux valgus deformity and hammer toes, to include as secondary to left foot third toe osteotomy, have not been met.  38 U.S.C. §§ 1101, 1112, 1113, 1110, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017).

3. The criteria for an initial compensable disability rating for the Veteran's service-connected bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's VA files.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, supra.  

Pertinent regulations were provided to the Veteran in the April 2010 and April 2011 statements of the case will not be repeated here in full.  

For the reasons discussed below, the claims on appeal must be denied.


I. Service Connection for Squamous Cell Carcinoma of the Throat

The Veteran claims service connection for squamous cell carcinoma of the throat.  He primarily contends that this condition is due to secondary exposure to herbicide agents on equipment he handled during his service in Taiwan during the Vietnam Era.  Specifically, he contends that his military occupational specialty (MOS) then involved cleaning and handling vehicles returning from Vietnam, and he asserts that he was exposed to herbicide agent residue allegedly covering those vehicles.  The RO also developed the theory of possible herbicide exposure during the Veteran's service in Korea.

Initially, the Veteran was diagnosed with squamous cell carcinoma of the pharynx in 2000.  Thus, his disability was not factually shown during service and did not manifest to a compensable degree within one year of separation from service, and he does not make these contentions.  See, e.g., 2011, 2016 Board hearing testimony.  Moreover, despite multiple references to complaints of and treatment for a sore throat, a cough, upper respiratory infections, congestion, and viruses in his service treatment records, there are no competent medical findings that suggest that such complaints and symptoms were manifestations of throat cancer.  There is also no continuity of symptomatology, as the Veteran's medical records do not indicate that he complained of symptoms of cancer or sought ongoing treatment prior to his formal diagnosis; nor does he contend that he experienced continuous throat cancer symptomatology since service.  Therefore, the Board finds that the Veteran is not entitled to service connection for throat cancer on a presumptive basis under the chronic disease provisions.  See 38 C.F.R. §§ 3.303, 3.307, 3.309.

Nor is the Veteran entitled to presumptive service connection under the provisions governing exposure to herbicide agents.  VA regulations only provide a presumption of herbicide exposure where the Veteran served in the Republic of Vietnam or the Korean DMZ during certain time periods.  38 C.F.R. § 3.307(a)(6).  In a case where a veteran is alleging herbicide exposure outside of those locations, the presumptive provisions do not apply and exposure must be determined on a case-by-case basis.  See 38 CFR 3.309(e); VA Adjudication Procedure Manual (Manual) M21-1, pt. IV, subpt. ii, ch. 1, § H.7.a.  Once it is established that a veteran was in fact exposed to a qualifying herbicide, VA will presume that a disease listed under 38 C.F.R. § 3.309(e) is due to the exposure to herbicides.

As noted above, the Veteran primarily contends that his throat cancer is due to secondary exposure to herbicide agents on vehicles during his service in Taiwan during the Vietnam Era.  Specifically, he claims he was exposed to herbicide agent residue while handling vehicles returning from Vietnam.  The RO also developed the theory of possible herbicide exposure during his service in Korea, although the Veteran acknowledged during the 2016 Board hearing that the Air Base where he was stationed in Korea was not near the Demilitarized Zone (DMZ).  (He also clarified that he does not advance a theory of herbicide exposure during his temporary presence in Thailand for leave. See, e.g., June 2010 substantive appeal.)  

The Veteran is not presumed to have been exposed to herbicide agents during his service in either Taiwan or Korea.  Initially, there is no presumed herbicide exposure for veterans who served in Taiwan during the Vietnam Era.  Moreover, under 38 C.F.R. § 3.307(a)(6)(iv), effective February 24, 2011, the presumption of herbicide exposure was extended to any veteran who served: in a unit determined by VA or the Department of Defense (DoD) to have operated in the Korean DMZ; and between April 1, 1968, and August 31, 1971.  The Veteran's verified Korea service from May 1971 to June 1972 partially fell within the specified time period.  However, his unit at that time, the 3rd Transportation Sq., was not determined by VA or DoD to have operated in the Korean DMZ.  See Manual, M21-1, IV.ii.1.H.4.b. (Units or Other Military Entities Identified by DoD as Operating in the Korean DMZ During the Qualifying Time Period). Again, the Veteran admitted he was not stationed near the DMZ, nor has he alleged his MOS otherwise took him to the DMZ.

Moreover, squamous cell carcinoma of the throat or pharynx is not specifically listed as a disease associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e).  Instead, respiratory cancers of the lung, bronchus, larynx, or trachea are listed.  Various medical findings of record establish that the location of the Veteran's cancer was in the pharynx, which is anatomically a different location than the larynx.  The Board also observes that the National Academy of Sciences Agent Orange Update from 2014 concluded that there was inadequate or insufficient information to determine whether there is an association between exposure to Agent Orange and oral cavity, nasal, and pharyngeal cancers.  Thus, contrary to the Veteran's contention otherwise (e.g., July 2012 statement), his squamous cell carcinoma of the pharynx is not a condition associated with herbicide agent exposure.

In summary, the Veteran is not presumed to have been exposed to herbicide agents, and he has not been diagnosed with a condition for which presumptive service connection due to alleged herbicide agent exposure applies.

Nor is the Veteran entitled to direct service connection for throat cancer.  When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.  Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994).  Even when a veteran is not entitled to the presumption of exposure to herbicide agents, he may, nonetheless, establish service connection if he has put forth sufficient evidence to demonstrate by an equipoise standard that he was actually exposed to such agents.  In this case, the Board finds that any direct service connection theory based on alleged herbicide exposure is unsupported by competent, persuasive evidence.

The RO's attempts to develop a theory of possible herbicide exposure during the Veteran's service in Taiwan based on the theory of secondary exposure to vehicles that had been in Vietnam and may have been exposed to herbicide agents yielded negative responses.  See January 2013 memorandum (finding of unavailability regarding confirmation of Agent Orange exposure in Taiwan and referencing development efforts in detail).  The Veteran's service records verify his service in Taiwan during the Vietnam Era, including from July 1972 to June 1975, and corroborate his statements regarding his MOS as a freight traffic specialist with a transportation unit during that period.  However, none of his service records support his theory of secondary herbicide exposure during his Taiwan service from vehicles returning from Vietnam that may have been covered in herbicide agent residue.  Nor do his service records support any other theory of possible exposure to herbicide agents during this period of service.

Moreover, as noted above, the RO's efforts to develop a theory of possible herbicide exposure during the Veteran's Korea service yielded negative responses regarding his unit's possible presence on or near the DMZ.  See August 2017 memorandum (regarding unsuccessful attempts to develop herbicide exposure theory based on Korea service; referencing development efforts in detail).  Although his service records confirm his service in Korea from May 1971 to June 1972, they do not support the finding that he or others in his unit were on or near the DMZ.  Nor do his service records support any other theory of possible exposure to herbicide agents during his Korea service.

The Board recognizes the Veteran's main contention that he was secondarily exposed to herbicide agent residue during his Taiwan service while handling vehicles that allegedly were returning from Vietnam and covered in herbicide residue.  Although he is competent to testify as to events that occurred in military service such as the nature of his MOS, he is not competent to conclude that the vehicles he handled actually were contaminated by herbicide agent residues, or that he indeed was secondarily exposed to herbicide agents through contact with those vehicles.  There is no presumption of "secondary exposure" based on handling equipment (or, in this case, vehicles) that was once allegedly in Vietnam.  See VA Adjudication Procedure Manual Rewrite M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection 10.r.  The "second-hand" exposure alleged by the Veteran is too remote and attenuated to support a finding of actual exposure.  Importantly, the Veteran has merely contended generally that the vehicles he handled in the course of his duties during his Taiwan service had been exposed to herbicide agents in Vietnam.  He essentially is alleging some residual contamination from those vehicles, but such vehicles' presence in Vietnam has not been verified.  Moreover, even assuming for the sake of argument that such vehicles' presence in Vietnam were verified, there is no scientific basis of record to quantify the extent, if any, of the vehicles' alleged herbicide residue contamination.  Therefore, the Board finds that the Veteran's statements of record are not competent evidence, and thus cannot support a finding of actual herbicide agent exposure.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   

The Board recognizes the favorable nexus opinion by the September 2017 VA examiner finding that the Veteran's squamous cell carcinoma of the pharynx was at least as likely as not etiologically related to his service, to include exposure to Agent Orange in the DMZ.  However, the Board does not find this statement probative because there is no persuasive evidence of record that the Veteran was indeed exposed to herbicide agents during his Taiwan or Korea service, or at any other time during service.  The examiner's implicit assumption that the Veteran was exposed to herbicide agents must have been based solely on the Veteran's statements, as the physician certainly has no direct, first-hand knowledge of such alleged exposure.  Other noted risk factors included the Veteran's male gender and his long history of smoking, both of which are unrelated to service.

The Board considered the post-service treatment records and Social Security Administration records showing diagnoses of and treatment for throat cancer.  However, this evidence did not verify herbicide exposure during service or otherwise relate this condition to service.

In summary, the Board finds that the Veteran was not exposed to herbicide agents in service, either on a presumptive or a direct basis.  Without persuasive evidence that he was actually exposed to herbicide agents, service connection for throat cancer is not warranted.  In reaching this decision, the Board considered the doctrine of reasonable doubt.  However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


II. Service Connection for Left Foot Hallux Valgus Deformity

The Veteran claims service connection for a left foot hallux valgus deformity (claimed as left foot deformity, claw toes, osteotomy through the fifth metatarsal and MP joints dislocation).  He primarily contends that his left foot deformities are related to his 1985 left foot, third toe osteotomy during service.  He also has asserted that this condition is related to combat boots he was issued and wore during service.  Alternatively, he contends that this condition is secondary to his service-connected residuals of a left foot, third and fifth toe osteotomy.  

In this case, the Board concedes the presence current left foot diagnoses of hallux valgus deformity and hammer toes, second to fifth toes.  See, e.g., 2010 and 2017 VA foot examination reports.  However, after a full review of the record, the Board finds that the claim must be denied.  The weight of the most competent, persuasive evidence is against a finding that these left foot conditions were incurred in or are related to service, or that they were caused or aggravated by his service-connected residuals of a left foot, third and fifth toe osteotomy.

Initially, the chronic disease presumption provisions do not apply to hallux valgus deformities or hammer toes.  See 38 C.F.R. § 3.309(a).  Accordingly, the Veteran is not entitled to service connection on a presumptive basis under those provisions.

Nor is the Veteran entitled to service connection on a direct or secondary basis.  The weight of the most competent, persuasive evidence is against a finding that these left foot conditions were incurred in or are related to service, including his 1985 left foot, third toe osteotomy or wearing combat boots during service.  Likewise, the weight of the most competent, persuasive evidence is against a finding that these left foot conditions were caused or aggravated by his service-connected left foot, third and fifth toe osteotomy residuals.

The Veteran's service treatment records - including multiple records referencing his 1985 left foot, third toe osteotomy and calluses, and associated treatment - are negative for any reference to left foot hallux valgus deformity or hammer toe complaints, diagnoses, or treatment.  Moreover, multiple reports of medical examination noted that his feet and lower extremities were normal, including his October 1989 retirement report of medical examination.  He also reported "no" on his October 1989 retirement report of medical history in response to an inquiry about foot trouble.

The Board considered the Veteran's post-service medical treatment records, but they do not include any medical findings relating the left foot hallux valgus deformity or hammer toes to service, or his service-connected left foot third and fifth toe osteotomy residuals.  The first documented references to left foot deformity complaints or treatment were in a statement by the Veteran's private treating physician Dr. S. from June 2009, almost two decades after service separation and more than two decades after the 1985 left foot, third toe osteotomy during service.  Although the June 2009 statement referenced treatment with Dr. S. for left foot deformities beginning in 1997, those 1997 private treatment records regarding various left foot issues do not specifically reference a left foot hallux valgus deformity or hammer toes; even assuming for the sake of argument that these 1997 private treatment records did reference those particular left foot conditions, that would still be about seven years after service separation, and more than a decade after the 1985 left foot, third toe osteotomy during service.

The Board finds the 2010 and 2017 negative VA medical opinions to be of great probative value.  Indeed, the examiners' conclusions were supported by medical rationales and were consistent with the verifiable facts regarding the Veteran's condition.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion).  The 2010 and 2017 VA examiners thoroughly and accurately considered the Veteran's medical history and examination results before rendering their respective, negative opinions.  

The March 2010 VA examination report and April 2010 addendum opinion competently and persuasively found that the Veteran's left foot hallux valgus deformity was a developmental condition.  The April 2010 addendum explained that this condition was symmetric in appearance and function, and there was no report by the Veteran or evidence in documentation for injury to the feet.  The addendum rejected the favorable opinion by Dr. S. stating that Dr. S. "believes the problem in the left foot with the deformities, the calluses, and the claw toe is all a continual progression of a problem that originally began some 20 years ago and is a service connected disability."  The April 2010 VA examiner found that this favorable private opinion did not account for the carbon-copy appearance and function of the right foot with hallux valgus formation.  The examiner further explained that Dr. S.'s opinion did not account for the symmetric hammer toe deformities of the second through the fifth phalanges of the right foot, despite the fact that there was no osteotomy performed on that foot.  Moreover, the examiner explained that hallux valgus formation (without injury) is consistent with natural aging.  Accordingly, the examiner found that his developmental hallux valgus deformity was not likely to have been caused by or related to his military service, and that this condition was not caused by or related to the left foot, third toe osteotomy while in service.  

The September 2017 VA examiner also competently and persuasively found that the Veteran's left foot hallux valgus deformity was less likely than not caused by or aggravated by service.  The examiner reasoned that, aside from being a developmental condition, there is no documentation showing aggravation of this condition during service.  Likewise, the September 2017 VA examiner also competently and persuasively found that the Veteran's left foot hallux valgus deformity and his hammer toes (second through fifth toes) were both less likely than not caused or aggravated by his calluses, status-post left foot, third toe osteotomy.  As to the left foot hallux valgus deformity and the hammer toes, respectively, the examiner reasoned that these conditions involve different anatomical locations with different etiological causes than his in-service calluses, status-post left foot, third toe osteotomy.  

The Board considered the June 2009 favorable statement by treating physician Dr. S. stating that he "believe[s] this problem in the left foot with the deformities, the calluses, and the claw toes is all a continual progression of a problem that originally began some 20 years ago and is a service connected disability."  The Board also considered the April 2016 favorable medical statement finding that the Veteran's bilateral hammer toe deformity was at least as likely as not caused by or a result of active duty, with reference to his in-service left foot surgery.  The Board affords these favorable opinions very little probative value because both are very conclusory.  Indeed, they provide minimal, vague rationales in support of their respective favorable findings.  The 2009 statement appears to have been based primarily on the Veteran's lay reports, as opposed to objective medical evidence.  The 2009 opinion also makes an improper legal conclusion as to whether his left foot deformities are service-connected.  Moreover, the 2016 opinion generally references the Veteran's in-service left foot surgery without explaining why that event was related to the currently diagnosed left foot deformities.  Neither opinion indicates that the provider considered the Veteran's complete medical history, including the claims file and service treatment records, in contrast with the 2010 and 2017 VA foot examination reports.  Moreover, neither favorable opinion accounted for the left foot's symmetry with the right foot, which did not undergo the in-service osteotomy, as noted in the VA April 2010 addendum opinion.

The Board recognizes the Veteran's contention that the Board should afford more weight to the 2009 opinion by his treating provider, who has known him for years, even though the provider did not review his service treatment records.  See, e.g., October 2010 notice of disagreement.  However, the Board rejects that contention.  The Board found the negative VA opinions more probative than this 2009 medical opinion in part because the negative opinions were based upon more complete reviews of the Veteran's medical history.  Accordingly, the Board rejects the Veteran's contention in his May 2009 substantive appeal that the conflicting medical opinions indicate that the evidence is at least in equipoise.  In summary, the Board affords more weight to the 2010 and 2017 VA negative medical opinions than to the favorable medical opinions submitted by the Veteran because the negative VA opinions were supported by more complete and thorough medical rationales, as well as fuller consideration of his medical history.  

The Board recognizes the Veteran's contention that his current left foot hallux valgus deformity and hammer toes are related to service (including his 1985 left foot, third toe osteotomy or wearing combat boots), or alternatively, that these conditions were caused or aggravated by his service-connected left foot third and fifth toe osteotomy residuals.  Although he is competent to testify as to events that occurred in military service and symptoms such as feelings of pain, he is not competent to conclude that his left foot hallux valgus deformity and hammertoes are related to service or to his service-connected left foot condition.  Such orthopedic issues are not susceptible to lay opinions on etiology.  Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

In summary, the Veteran is not entitled to service connection on a direct or secondary basis.  The weight of the most competent, probative medical evidence does not show that his left foot hallux valgus deformity or hammer toes were incurred in service, establish a link between these conditions and service, or show that these conditions were caused or aggravated by his service-connected left foot third and fifth toe osteotomy residuals.

Therefore, service connection for this condition is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.  


III. Increased Initial Rating for Bilateral Hearing Loss

The Veteran contends that his service-connected bilateral hearing loss is more severe than what is reflected by the current noncompensable rating.  Specifically, he contended in his November 2010 notice of disagreement that 2010 non-VA audiometric data and findings warranted at least a 10 percent disability rating.

After a full review of the record, the Board finds that the claim must be denied because the Veteran's service-connected bilateral hearing loss has manifested as auditory thresholds and word recognition scores that are noncompensable.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.

The Veteran was afforded VA audiological evaluations in May 2010 and September 2017.  Application of both sets of audiological data to the specific provisions of 38 C.F.R. § 4.85 results in a noncompensable rating for bilateral hearing loss under Diagnostic Code 6100.  

The May 2010 VA audiological evaluation reported puretone thresholds, in decibels, as follows:



HERTZ




1000
2000
3000
4000
Avg.
RIGHT 
40
45
40
40
41.25
LEFT
25
35
45
40
36.25

The right ear Maryland CNC word recognition score was 94 percent and the left ear Maryland CNC word recognition score was 100 percent.  Application of the standard method under Table VI was appropriate bilaterally, and results in level I hearing impairment bilaterally.  Upon mechanical application of these values into Table VII, the result is a noncompensable rating.  

The September 2017 VA audiological evaluation reported puretone thresholds, in decibels, as follows:



HERTZ




1000
2000
3000
4000
Avg.
RIGHT 
35
40
40
50
41.25
LEFT
30
35
40
50
38.75

The right ear Maryland CNC word recognition score was 88 percent bilaterally.  Application of the standard method under Table VI was appropriate bilaterally, and results in level II hearing impairment bilaterally.  Upon mechanical application of these values into Table VII, the result is a noncompensable rating.  

Table VIA is not applicable in this case because neither the 2010 nor the 2017 VA puretone threshold results were 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 400 Hertz) in either ear.  Moreover, neither the 2010 nor the 2017 VA puretone threshold results were 30 decibels or less at 1000 Hertz, and more than 70 decibels at 2000 Hertz in either ear.  The 2017 VA audiological examiner competently found that speech discrimination testing scores were appropriate for the Veteran and nothing in the record suggests otherwise.  See 38 C.F.R. §§ 4.85(c), 4.86.

The record also contains non-VA audiological results.  However, those results do not note that the Maryland CNC test for speech discrimination testing was used.  See August 2010 audiogram; April 2016 audiogram and accompanying report.  The April 2016 provider noted "PBQ" regarding the speech discrimination results, suggesting that the PB-50 word list, as opposed to the Maryland CNC word list, was used.  Therefore, the Board finds that this non-VA audiometric data is inadequate for rating purposes.  See 38 C.F.R. § 4.85(a).

The Board recognizes the hearing difficulties that the Veteran experiences as a result of his disability as expressed in various lay statements of record and his hearing testimony, including the specific contention that he is entitled to at least a 10 percent rating.  However, his claim primarily hinges on a mechanical application of specifically defined, objective regulatory standards.  The Board is bound by the very precise nature of the laws governing evaluations of hearing loss disabilities.  In this case, those objective regulatory standards do not support the assignment of an initial compensable rating for bilateral hearing loss.

In summary, the Veteran's bilateral hearing loss warrants an initial noncompensable (zero percent) rating.  The Board concludes that the preponderance of the evidence is against the claim.  The benefit of the doubt rule is not applicable as there is not an approximate balance of evidence.  See 38 U.S.C.A. § 5107(b); Gilbert, supra.

Finally, the Veteran has not raised any other issues regarding this claim, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  He has not alleged that he experiences any unusual symptoms due to his hearing loss disability or any impairment not contemplated by the rating schedule.


IV. Duties to Notify and Assist

The Veteran suggested in his October 2010 notice of disagreement that the 2010 VA foot examination and addendum opinion were inadequate.  Specifically, the Veteran stated that the VA examiner only examined him for less than an hour.  In a September 2017 statement, the Veteran also implicitly challenged the 2017 VA foot examiner's findings that his hallux valgus deformity was a developmental condition.

The Board rejects these contentions and finds that the 2010 VA foot examination, the 2010 VA addendum medical opinion, the 2017 VA foot examination, and the 2017 VA medical opinion regarding the left foot were adequate.  The reports all were prepared by appropriate medical professionals, based on an accurate review of the Veteran's record, history, and symptomatology, and included the necessary objective findings.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Although the Veteran's September 2017 statement generally challenged the 2010 and 2017 VA foot examiners' respective findings that his hallux valgus deformity was a developmental condition, he provided no reasoning in support of this general expression of displeasure with these unfavorable findings.  A VA examination is not inadequate simply because it contains unfavorable findings.  

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearings.  As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010).  See Dickens, supra.


ORDER

Service connection for squamous cell carcinoma of the throat is denied.

Service connection for left foot hallux valgus deformity, to include as secondary to left foot third toe osteotomy, is denied.

Entitlement to an initial compensable disability rating for bilateral hearing loss is denied.


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs