Citation Nr: 1800665 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-18 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable evaluation for service-connected hearing loss. 2. Entitlement to a compensable evaluation for service-connected hemorrhoids. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a tumor of the right side gum and sinus, including as due to exposure to herbicide agents. 5. Entitlement to service connection for bilateral leg disabilities (blood clots). ATTORNEY FOR THE BOARD K. Hubers, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of this matter is currently with the RO in Jackson, Mississippi. The Veteran filed a Notice of Disagreement with that rating decision challenging all issues in the rating decision. However, when he perfected his appeal, he expressly limited his appeal to the first four claims listed above. See April 2016 VA Form 9. Therefore, this appeal does not include the issue of entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities. During the pendency of this appeal, the RO denied the Veteran's claim of entitlement to service connection for bilateral leg disabilities (clots) and the Veteran timely filed a September 2017 Notice of Disagreement. The RO has not yet had time to issue a Statement of the Case, but the Board will remand the matter for the issuance of an SOC pursuant to 38 C.F.R. § 19.9. Additional evidence, primarily VA treatment records, have been added to the claims file since the March 2016 Statement of the Case currently on appeal. That evidence relates to conditions not at issue in this appeal and is not pertinent to the claims being decided. Therefore, the Board may proceed to the merits of the hearing loss, hemorrhoid, and tinnitus claims. 38 C.F.R. § 20.1304(c). The issue of entitlement to a rating in excess of 30 percent disabling for posttraumatic stress disorder has been raised by the record in a December 2017 claim (VA 21-526EZ), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for tumor of the right side gum and sinus and for bilateral leg disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Audiometric testing establishes that the Veteran has, at worst, level II hearing in the right ear and level II hearing in the left ear. 2. The Veteran experiences mild to moderate symptoms related to his service-connected hemorrhoids, including occasional bleeding but without anemia or fissures and he does not have large or thrombotic, external or internal hemorrhoids. 3. The weight of the evidence is against a finding that the Veteran's tinnitus either began during or was otherwise caused by his military service, by his service-connected hearing loss, or that it has been aggravated by his service-connected hearing loss. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for entitlement to an initial compensable rating for the service-connected hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7336 (2017). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (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 points below focus 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, infra. I. Increased Rating: Hearing Loss The Veteran seeks a compensable rating for his service-connected hearing loss. As an initial matter, the Board notes that the Veteran was originally service connected for "bilateral hearing loss." See May 2014 Rating Decision. Although there are notations in the file indicating an intent to change the award based on the VA examiner only providing a positive opinion for the right ear, VA has taken no steps to alter or amend the original award of service connection. Therefore, the Board will rate the condition as it was awarded, specifically: bilateral hearing loss. Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Also, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for hearing loss generally must be based on objective audiometric testing of puretone threshold averages and controlled speech discrimination testing (Maryland CNC) by a state-licensed audiologist. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85(d), the puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. These averages, together with the speech recognition ability, are combined pursuant to 38 C.F.R. § 4.85, Table VI, to obtain a Roman numeral designation. In some circumstances, the rating specialist may use Table VIa instead of Table VI. Specifically, Table VIa may be used where the examiner certifies that use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Also, in cases presenting exceptional patterns of hearing impairment, a rating specialist may use Table VIa. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment include circumstances where the hearing thresholds are 55 decibels or more in each of the four frequencies from 1000 to 4000 Hertz or where a veteran has a hearing threshold of less than 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. As noted above, disability ratings for hearing loss are generally based on objective testing by a state-licensed audiologist. The record contains no evidence that the Veteran is a licensed audiologist and, moreover, he has not provided any audiometric testing results of his own. For these reasons, the Board finds that his assertions are not competent evidence of his degree of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered his subjective complaints in light of the medical evidence of record. The record contains the results of two VA audiological examinations. In a April 2014 VA audiological examination, the Veteran had puretone threshold averages of 55 db in the right ear and 58 db in the left ear with 94 percent Maryland CNC word list speech recognition scores in each ear. Using Table VI, the Roman numeral designation for the right ear is level I hearing and for the left ear is level II hearing. Using those Roman numeral designations and Table VII to obtain a percentage evaluation would result in a noncompensable rating for the Veteran's bilateral hearing disability. See 38 C.F.R. § 4.85 Table VII. In a March 2016 VA audiological examination, the Veteran had puretone threshold averages of 59 db in the right ear and 56 db in the left ear with Maryland CNC word list speech recognition scores of 96 percent in the both ears. Using Table VI, the Roman numeral designation for the right ear is level II hearing and for the left ear is level I hearing. Using the Table VI Roman numeral designations and Table VII to obtain a percentage evaluation would result in a noncompensable percent rating for the Veteran's bilateral hearing disability. See 38 C.F.R. § 4.85 Table VII. The greater weight of the evidence is against finding that the Veteran meets the criteria for a compensable rating for his bilateral hearing loss. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53-56. Accordingly, the Veteran's claim of entitlement to a compensable evaluation for service-connected bilateral hearing loss is denied. II. Increased Rating: Hemorrhoids The Veteran asserts that the symptoms of his service-connected hemorrhoids warrant a compensable rating. Under DC 7336, a noncompensable rating is warranted for external or internal hemorrhoids that are mild or moderate. 38 C.F.R. § 4.114. A 10 percent disability rating is warranted when hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The maximum 20 percent disability rating is warranted when there are hemorrhoids with persistent bleeding and secondary anemia or fissures. 38 C.F.R. § 4.114, DC 7336. The Board acknowledges that the Veteran contends that his service-connected hemorrhoids warrant a higher evaluation. However, in determining the actual degree of disability, contemporaneous medical records and an objective examination by a medical professional are more probative of the degree of the Veteran's impairment than his layman's opinion. This is particularly so where the rating criteria require analysis of the clinical significance of medical symptoms, even if the existence of symptoms is observable by a layman. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Board finds that the medical opinions of this Veteran, who lacks medical training, are not competent evidence of the clinical significance of his symptoms. Id. The Board, however, has considered the Veteran's subjective reports of symptoms, particularly as they illuminate or underscore the medical opinions of record. The Veteran underwent a VA examination in April 2014. The examiner diagnosed hemorrhoids with symptoms of itching and external protrusion with bleeding if constipated. The Veteran also experienced problems with cleaning after bowel movements. He did not require medication. Upon examination, the examiner found slightly tender internal hemorrhoids and external, non-tender skin tags. The examiner opined that the condition was mild or moderate. The condition had no functional impact. The examiner noted the absence of blood, though there was some fecal soilage associated with the skin tags. In March 2016, the Veteran underwent another VA examination. The examiner documented the Veteran's statement that he continued to notice blood on the tissue after constipated bowel movements. The Veteran denied treatment, "frank bleeding", or surgery for the condition. The condition did not require medication. Examination was normal with no external hemorrhoids, anal fissures or other abnormalities. The examiner indicated the condition had no functional impact. The examiner commented that the Veteran had a diagnosis of anemia with thrombocytosis and that he was being followed for that condition. As noted in the examinations, the Veteran has not undergone treatment for his hemorrhoids and the treatment records are silent with respect to his hemorrhoid symptoms. Therefore, the VA examinations provide the most relevant competent evidence on the issue. The Veteran's symptoms most closely approximate the criteria for a noncompensable rating. Both examiners opined that the condition is mild to moderate and did not include external hemorrhoids (much less large external hemorrhoids). While there was some evidence of bleeding related to the hemorrhoids (primarily the Veteran's statements), the Veteran's statements and the VA examiners' reports do not indicate "persistent bleeding." For example, the Veteran reported blood on tissue after constipated bowel movements, but no bleeding at other times. The Board acknowledges that the March 2016 VA examiner noted a prior diagnosis of anemia. However, the examiner did not indicate that the Veteran had persistent bleeding or that the anemia was secondary to the Veteran's hemorrhoids. See 38 C.F.R. § 4.114, DC 7336 (20 percent evaluation for hemorrhoids "with persistent bleeding and with secondary anemia, or with fissures"); Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (use of conjunctive "and" indicates all criteria must be met). An October 2015 VA hematology consult note diagnosed anemia and discussed its likely etiology with no mention or indication that the Veteran's hemorrhoids or any related bleeding was related to the anemia. In other words, the greater weight of the evidence is against finding that the Veteran has hemorrhoids "with persistent bleeding and with secondary anemia." The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53-56. The Board finds that the Veteran's symptoms most closely approximate the criteria for a noncompensable rating. See 38 C.F.R. § 4.7. Accordingly, the Veteran's claim of entitlement to a compensable evaluation for service-connected hemorrhoids is denied. III. Service Connection: Tinnitus The Veteran claims entitlement to service connection for tinnitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are encompassed by the list of chronic diseases under 38 C.F.R. § 3.309(a). See M21-1MR, Part III.iv.4.B.12.a. (noting "other organic diseases of the nervous system" includes tinnitus). Therefore, the Board has considered and applied the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology in analyzing the Veteran's tinnitus claim. However, the evidence establishes that the Veteran's tinnitus has been "intermittent" and had onset many decades after service. See April 2014 VA Examination (noting date of onset of tinnitus "was reported to be well after service period" and "has been present for about a year"). Service connection based on continuity of service is not warranted. With respect to direct service connection, the Veteran has been diagnosed with tinnitus and VA has previously determined the Veteran suffered in-service acoustic trauma, so the current disability and in-service event elements of the claim have been established. The remaining element of the claim is a nexus between the tinnitus and the in-service trauma. The Veteran has offered his own etiological opinion, but the record contains no indication that the Veteran has the specialized education, training, or experience needed to determine the etiology of tinnitus. The Board finds that the Veteran's opinions regarding the etiology of his tinnitus are not competent evidence in the circumstances of this case. See King, 700 F.3d at 1344-45; Jandreau, 492 F.3d at 1377. The Board has, however, considered the lay statements to the extent they are relevant in evaluating the relative weight to be accorded the etiological opinions of the medical professionals who treated or examined the Veteran. The only competent medical opinions of record on the issue are those of the April 2014 and March 2016 VA examiners. The April 2014 VA examiner documented the Veteran's report of onset roughly one year prior to that examiner (i.e., over 40 years after discharge) and opined that the Veteran's tinnitus was not associated with his hearing loss. The March 2016 VA examiner diagnosed bilateral tinnitus with onset in or around 2013. The examiner opined that the tinnitus was less likely than not caused by or a result of military noise exposure. The examiner explained that the tinnitus was remote in time from the Veteran's military service and unlikely to be associated with his hearing loss. The opinion is sufficiently supported to warrant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. Importantly, both examiners noted the absence of an association between the Veteran's tinnitus and his hearing loss, which is required for VA examinations to be adequate. See Fountain v. McDonald, 27 Vet.App. 258, 275 (Feb. 9, 2015) (discussing correlation between hearing loss and tinnitus and the need for medical opinions to address any medical connection between the two where both are diagnosed); see also VA Fast Letter 08-10 (Apr. 17, 2008) ("[i]f hearing loss is also present, the audiologist must provide an opinion about the association of tinnitus to hearing loss"); VA Training Letter 10-02 at F.5.b.1. ("If the examiner states that tinnitus is a symptom that is associated with [service-connected] hearing loss, the tinnitus should be service connected and separately evaluated..."). The greater weight of the competent evidence is against finding a causal nexus between the in-service acoustic trauma and the Veteran's tinnitus or that the tinnitus is associated with his hearing loss. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for tinnitus is denied. IV. Duties to Notify and Assist The Veteran has not raised any 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). The Veteran has not alleged any deficiencies in the VA examinations or opinions of record. Thus, the Board need not discuss any potential issues in this regard. ORDER Entitlement to a compensable evaluation for hearing loss is denied. Entitlement to a compensable evaluation for hemorrhoids is denied. Entitlement to service connection for tinnitus is denied. (CONTINUED ON NEXT PAGE) REMAND The Veteran claims that his tumor of the right side gum and sinus is due to his conceded in-service exposure to herbicide agents. VA has not provided an examination or obtained an opinion regarding a potential link between the tumor and his in-service exposure to herbicide agents. While the Veteran's condition is not on the list of conditions presumptively associated with herbicide exposure, a number of cancers including cancers in similar areas are. See 38 C.F.R. § 3.309(e). Moreover, the National Academy of Science's Institute of Medicine's "Veterans and Agent Orange: Update 2014" concluded that there was "limited or suggestive" evidence of an association between herbicide exposure and cancers of the oral cavity or nasal cavity (including sinuses). See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2014 (2016) at 907-908. Although the Veteran's cancer is not subject to presumptive service connection, the record indicates that there may be an association between his cancer and the in-service exposure to toxins. VA has a duty to provide him with an examination and obtain a medical opinion regarding the possible association. See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006); Combee v. Brown, 34 F.3d 1039, 1040 (Fed. Cir. 1994). The AOJ has not yet issued a Statement of the Case with respect to the appeal seeking service connection for bilateral leg disabilities claimed as due to exposure to herbicide agents. Remand is required for the issuance of a Statement of the Case. See 38 C.F.R. § 19.9(c) (2017), codifying Manlincon v. West, 12 Vet. App. 238 (1999). Any further development deemed necessary with respect to that claim should be completed. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding, relevant VA medical records. 2. Only after obtaining the VA medical records and any other development deemed necessary, schedule the Veteran for a VA examination to address the nature, symptoms (including residuals), and etiology of the Veteran's tumor of the right side gum and sinus. The entire claims file should be reviewed by the examiner. Any necessary testing should be accomplished. After reviewing the record and performing any examination and/or testing of the Veteran deemed necessary, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's tumor of the right side gum and sinus was incurred in or otherwise related to the Veteran's military service, including exposure to herbicide agents during his service in the Republic of Vietnam? b. If so, identify the current disability and residuals associated with the tumor and treatment of that tumor. It has been established that the Veteran was exposed to herbicide agents during his service in the Republic of Vietnam. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 3. After completing the above, and any other development deemed necessary, readjudicate, based on the entirety of the evidence, the Veteran's claim of entitlement to service connection for a tumor of the right side gum and sinus including as due to exposure to herbicide agents. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 4. After conducting any additional development deemed necessary, issue a statement of the case with respect to the claims of entitlement to service connection for bilateral leg disabilities including as due to herbicide exposure. Then, advise the appellant, in writing, of the requirements for perfection of an appeal of those issues. If a timely substantive appeal is not filed, the claims should not be certified to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs