Citation Nr: 1801807 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-31 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a liver disability, to include cirrhosis of the liver. 2. Entitlement to service connection for a kidney disability. 3. Entitlement to an increased rating for service-connected hearing loss, evaluated as noncompensably disabling prior to November 6, 2017, and 20 percent disabling from November 6, 2017. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran filed a notice of disagreement (NOD) for the rating decision with regard the claims of entitlement to service connection for liver and kidney disabilities in October 2015. The Veteran filed an NOD with regard to the claim of entitlement to an increased rating for bilateral hearing loss in April 2016. Statements of the case (SOC) were issued in April 2016 and July 2016, and the Veteran perfected his appeals in May 2016 and July 2016. The Veteran testified before the undersigned via videoconference at a hearing in September 2017. A transcript of the hearing is of record. In November 2017, after the hearing, the Veteran filed what he believed to be a new claim for an increased rating for bilateral hearing loss. However, the Board notes that this claim is the same claim as is on appeal. The RO issued a rating decision in December 2017 that increased the Veteran's evaluation of bilateral hearing loss to 20 percent disabling, effective November 6, 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. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's liver disability, to include cirrhosis of the liver, did not manifest during service or within one year of separation from service, was not related to his service, and was not caused or aggravated by medication taken to treat a service-connected disability. 2. The Veteran's kidney disability did not manifest during service or within one year of separation from service, was not related to his service, and was not caused or aggravated by medication taken to treat a service-connected disability. 3. For the period prior to November 6, 2017, the Veteran has manifested no worse than Level 1 hearing acuity in his right ear and Level I acuity in his left ear. 4. For the period from November 6, 2017, the Veteran has manifested no worse than Level VI hearing acuity in his right ear and Level IV hearing acuity in his left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a liver disability, to include cirrhosis of the liver, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 CFR §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a kidney disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 CFR §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. For the period prior to November 6, 2017, the criteria for a compensable rating for the Veteran's bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.201, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100, 4.86 (2017). 4. For the period from November 6, 2017, the criteria for a disability rating higher than 20 percent for the Veteran's bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.201, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that his liver and kidney disabilities were caused by his active service, to include exposure to herbicide agents, or are secondary to medication used to treat shingles. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including cirrhosis of the liver and calculi of the kidney or renal disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a non-service connected disability by a service connected disability. Service connection for certain disabilities are presumed for veterans who were exposed to herbicides while in service if this disability manifests to a compensable degree at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). A veteran, who during active service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran serviced in the Republic of Vietnam from 1966 to 1968. As such, the Veteran is presumed to have been exposed to herbicide agents during such service. However, the Veteran does not have a diagnosed disease subject to presumptive service connection based on exposure to herbicide agents. A November 2013 VA Medical Center treating note indicated the Veteran has a clinical history of cirrhosis and an echogram showing fatty liver. A June 2012 VA Medical Center CT showed a nonobstructing renal stone. A September 2015 VA Medical Center ultrasound identified a right renal cyst. Although these diagnoses satisfy the current disability criteria required for the first element of direct service connection, they are not diseases subject to presumptive service connection based on exposure to herbicide agents. 38 C.F.R. § 3.309(e). As such, the Veteran is not entitled to service connection based on exposure to herbicide agents. Although the Veteran is not entitled to presumptive service connection based on herbicide agent exposure, the Board has also considered the claim on a direct, presumptive chronic disease, and secondary basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The preponderance of the evidence is against the grant of service connection for liver and kidney disabilities on a direct or presumptive chronic basis. The Veteran's service treatment records do not show any treatment for, or symptoms of, liver or kidney disabilities while in service. The post-service medical records, including the Veteran's own statement, support that he did not experience symptoms of a liver or kidney disability until 2012, approximately 44 years after service. The Board has considered the Veteran's statements that his liver and kidney disabilities were caused by his exposure to herbicide agents while in service. However, whether the Veteran's liver or kidney disabilities are related to herbicide agent exposure is a complex medical questions, and is not within the knowledge of a lay person or determinable by observation with one's senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran's statement is not competent evidence and not probative. The claims file does not contain any competent evidence relating the Veteran's liver or kidney disabilities to his service or herbicide agent exposure. As such, the preponderance of the evidence is against the grant of service connection on a direct basis. The Veteran stated at the September 2017 hearing that he believed that his medication prescribed to treat shingles caused his liver and kidney disabilities. However, the Veteran's shingles is not a service-connected disability. As such, the Veteran is not entitled to service-connection on a secondary basis. The preponderance of the evidence weighs against a grant of service connection for the Veteran's liver or kidney disabilities on a direct, secondary, or presumptive basis. As such, the claims of entitlement to service connection for liver and kidney disabilities must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. In describing the evidence the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. A. For the period prior to November 6, 2017 The Veteran was originally granted service connection for bilateral hearing loss in an October 2010 rating decision. He was assigned a noncompensable rating effective December 20, 2009. The Veteran did not submit a NOD for this rating decision, and therefore the October 2010 rating decision became final. The Veteran filed the current claim for an increased rating for bilateral hearing loss in July 2015. A September 2015 VA audiological examination revealed right ear auditory thresholds in the frequencies of 1000, 2000, 3000, and 4000 Hz as 40, 40, 50, and 55 dB, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 40, 45, 55, and 60 dB. Speech recognition, using the Maryland CNC word list, was 96 percent in the right ear and 94 percent in the left ear. The results of the December 2017 examination correspond to Level I hearing in the right ear, and Level I hearing in the left ear. 38 C.F.R. § 4.85(a). When those values are applied to Table VII, a noncompensable disability rating is assigned. A December 2015 private provider audiological evaluation revealed right ear auditory thresholds in the frequencies of 1000, 2000, 3000, and 4000 Hz as 35, 25, 35, and 45 dB. For the left ear, auditory thresholds in the same frequencies were recorded as 35, 30, 50, and 45 dB. The evaluation did not contain speech discrimination results. A September 2017 private provider audiological evaluation revealed right ear auditory thresholds in the frequencies of 1000, 2000, 3000, and 4000 Hz as 65, 75, 75, and 80. For the left ear, auditory thresholds in the same frequencies were recorded as 80, 80, 85, and 85 dB. The evaluation did not contain speech discrimination results. The private audiological evaluations show that the audiologists did not use the Maryland CNC test, or any other speech discrimination test, to obtain speech recognition scores. The private providers did not certify that the use of a speech discrimination tests was not appropriate. Consequently, these reports are inadequate for rating purposes because speech discrimination cannot be determined pursuant to the criteria in the regulation. As such, the December 2015 and September 2017 audiometric evaluations are deficient and do not establish a hearing loss disability that satisfies the criteria under 38 C.F.R. § 3.385. The application of the rating schedule based on a valid VA audiological examination report dated during the appeal period indicates that a noncompensable rating is warranted. There is no evidence that the Veteran met the criteria for a 10 percent or higher rating at any time during the appeal period and the assignment of a schedular disability evaluation for hearing impairment is a purely mechanical application of the rating criteria. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Therefore, the weight of the evidence is against an initial compensable rating for bilateral hearing loss disability for the period prior to November 6, 2017. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 B. For the period from November 6, 2017 The Veteran was afforded a VA examination in December 2017. The audiological examination revealed right ear auditory thresholds in the frequencies of 1000, 2000, 3000, and 4000 Hz as 55, 60, 55, and 65 dB, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 55, 60, 65, and 65 dB. Speech recognition, using the Maryland CNC word list, was 66 percent in the right ear and 80 percent in the left ear. The results of the December 2017 examination correspond to Level VI hearing in the right ear, and Level IV hearing in the left ear. 38 C.F.R. § 4.85(a). When those values are applied to Table VII, a 20 percent disability rating is assigned. A higher rating is not warranted under 38 C.F.R. § 4.86. Using Table VIA, the Veteran's right ear hearing impairment corresponds to Level IV in the right ear and Level IV in the left ear. When those values are applied to Table VII, a 10 percent disability rating is assigned. Therefore, the Veteran is not entitled to a higher evaluation for his service-connected hearing loss pursuant to 38 C.F.R. § 4.86. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The December 2017 examination report documents that the Veteran reported that the functional impact of his hearing loss dsability is that it had worsened and that he often has to ask people to repeat themselves. In determining whether a referral for extraschedular evaluation is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds that the Veteran's symptoms associated with his bilateral hearing loss, to include difficulty understanding speech, are contemplated by the schedular rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As such, the Board finds the schedular evaluation adequate. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, no further inquiry is required. There is no evidence that the Veteran met the criteria for a rating in excess of 20 percent at any time after November 5, 2017. Therefore, the weight of the evidence is again a rating in excess of 20 percent for bilateral hearing loss disability for the period beginning November 6, 2017. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 ORDER Entitlement to service connection for a liver disability, to include cirrhosis of the liver, is denied. Entitlement to service connection for a kidney disability is denied. For the period prior to November 6, 2017, entitlement to a compensable rating for service-connected bilateral hearing loss is denied. For the period from November 6, 2017, entitlement to a rating in excess of 20 percent is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs