Citation Nr: 1803450	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-13 924	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to an initial compensable evaluation for bilateral hearing loss.

2. Entitlement to service connection for a respiratory disorder, to include as due to herbicide and/or asbestos exposure.

3. Entitlement to service connection for Barrett's esophagus, to include as due to herbicide agent exposure.


ATTORNEY FOR THE BOARD

A. Boal, Associate Counsel


INTRODUCTION

The Veteran had service from March 1963 to July 1966.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In September 2015, the Board remanded the case for further development, including fully adjudicating two of the issues on appeal and obtaining additional information about the Veteran's private audiology examination.  The Board is satisfied that there has been substantial compliance with the remands' directives and will proceed with review.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issues of entitlement to service connection for Barrett's esophagus and entitlement to service connection for a respiratory condition, to include as due to herbicide and/or asbestos exposure, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's bilateral hearing loss was manifested by, at most, Level III hearing bilaterally.


CONCLUSION OF LAW

The criteria for a rating evaluation in excess of 0 percent for bilateral hearing loss have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.85, 4.86 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.156(a), 3.159 (2017). 

The VCAA duty to notify was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in March 2012 and February 2013.  These letters also informed the Veteran of the information and evidence that was required to substantiate his claims on both a presumptive and direct basis and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.  No additional notice is required.

VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.§ 5103A; 38 C.F.R. § 3.159. 

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  VA's duties to notify and assist with this claim have been satisfied.

Law and Regulations

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.1.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.  An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b).  The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). 
Table VI
Numeric designation of hearing impairment based on puretone threshold average and speech discrimination.

% of
discrim-
ination
Puretone Threshold Average

0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV 
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 
68-74
IV
IV
V
V
VI
VI
VII
VII
VII 
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII 
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX 
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X 
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X 
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI 

Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.

Table VIA
Numeric designation of hearing impairment based only on puretone threshold average: 

0-41
42-48
49-55
56-62
63-69
70-76
77-83
84-90
91-97
98-104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI

The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). 






Table VII
Percentage evaluation for hearing impairment (diagnostic code 6100)
 
Poorer Ear
XI
100*
 
 
 
 
 
 
 
 
 
 
X
90
80
 
 
 
 
 
 
 
 
 
IX
80
70
60
 
 
 
 
 
 
 
 
VIII
70
60
50
50
 
 
 
 
 
 
 
VII
60
60
50
40
40
 
 
 
 
 
 
VI
50
50
40
40
30
30
 
 
 
 
 
V
40
40
40
30
30
20
20
 
 
 
 
IV
30
30
30
20
20
20
10
10
 
 
 
III
20
20
20
20
20
10
10
10
0
 
 
II
10
10
10
10
10
10
10
0
0
0
 
I
10
10
0
0
0
0
0
0
0
0
0 
 
XI
X
IX
VIII
VII
VI
V
IV
III
II
I

The evidence for consideration in connection with the Veteran's claim for an increased evaluation consists of VA medical records and the reports of VA examinations, along with reports completed by a private audiologist.  

The Veteran was afforded a VA examination in May 2012, to assess the severity of the Veteran's hearing loss disability. The results, in puretone thresholds, in decibels, are as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
10
30
55
65
40
LEFT
15
30
55
60
40

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear.

Applying the results to Table VI results in a numeric designation of II in the right ear and II in the left ear.  Under Table VII (38 C.F.R. § 4.85), the numeric designation II in the left ear and II of the right ear requires the assignment of a 0 percent evaluation under Diagnostic Code 6100.  There are no exceptional patterns of hearing impairment which would require separate compensable evaluations pursuant to 38 C.F.R. 4.86.

The Veteran was also afforded a VA examination in August 2013, to assess the severity of his hearing loss disability.  The results, in puretone thresholds, in decibels, are as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
40
55
60
43.75
LEFT
25
40
60
70
48.75

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear.

Applying the results to Table VI results in a numeric designation of III in the right ear and III in the left ear.  Under Table VII (38 C.F.R. § 4.85), the numeric designation III in the left ear and III of the right ear requires the assignment of a 0 percent evaluation under Diagnostic Code 6100.  There are no exceptional patterns of hearing impairment which would require separate compensable evaluations pursuant to 38 C.F.R. 4.86.

Finally, the Veteran was also afforded a VA examination in October 2017, to assess the severity of his hearing loss disability.  The results, in puretone thresholds, in decibels, are as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
45
60
65
48.75
LEFT
25
40
60
70
48.75

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 82 percent in the left ear.

Applying the results to Table VI results in a numeric designation of II in the right ear and III in the left ear.  Under Table VII (38 C.F.R. § 4.85), the numeric designation III in the left ear and II of the right ear requires the assignment of a 0 percent evaluation under Diagnostic Code 6100.  There are no exceptional patterns of hearing impairment which would require separate compensable evaluations pursuant to 38 C.F.R. 4.86.

Also, the Veteran submitted the report of his private audiogram in July 2012.  The Board notes that this matter was remanded to determine whether the private audiogram included a Maryland CNC speech recognition test as required by 38 C.F.R. 4.85.  The Veteran submitted letters in January 2016 and June 2017 indicating that the Maryland CNC test was not conducted by the private audiologist.  Thus, the audiology report cannot be used by VA for disability rating purposes.

The record also contains post-service VA treatment records, but those records do not contain information that could be used to substantiate an increased rating for the Veteran's hearing loss disability.

As the medical evidence of record does not support a disability rating in excess of 0 percent for the Veteran's service-connected bilateral hearing loss, the Board must deny the Veteran's claim for an initial compensable evaluation.


ORDER

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




REMAND

VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  Floyd v. Brown, 9 Vet. App. 88, 93 (1996).  VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his or her claim.  38 U.S.C. § 5103A (d) (2012); 38 C.F.R. 
 § 3.159(c)(4) (2017).  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Asbestosis

The Veteran claimed he was exposed to asbestos during basic training, while serving on board the USS J. Douglas Blackwood (DE-219), and while performing duties at various military bases.  He also claims to have been exposed to asbestos while performing compartment cleaning.

With respect to claims involving asbestos exposure, there is no specific statutory guidance, nor has the Secretary of VA promulgated any regulations in regard to such claims.  However, VA's Adjudication Procedure Manual contains provisions regarding claims for service connected based on exposure to asbestos.  See M21-1.IV.ii.2.C.2.a-i and M21-1.IV.ii.1.I.3.a-f.  These provisions stipulate that VA must determine whether military records demonstrate evidence of asbestos exposure during service as well as determine whether there is a relationship between any such asbestos exposure and the claimed disease.  The Court of Appeals for Veterans' Claims has held the Board must discuss these provisions in assessing a claim to service connection for asbestos-related disease.  McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

VA's Adjudication Procedure Manual also provides that claims based on exposure to asbestos require a diagnosed disability that has been associated with in-service exposure. It is not clear whether the Veteran has a diagnosis of asbestosis.  A clinical diagnosis of asbestosis requires radiographic evidence of parenchymal lung disease.  M21-1.IV.ii.2.c.2.g.  Here, the December 2017 VA examination report was not clear whether the Veteran had a current diagnosis of asbestosis. 

Due to the ambiguity in the VA examination, this case must be remanded in order to obtain clarification regarding whether the Veteran has a current lung disability, to include asbestosis, and whether any such diagnosed disability is related to any verified in-service asbestos exposure.

Barrett's esophagus

The Veteran claims that he currently suffers from Barrett's esophagus and that his condition was caused by being exposed to asbestos.  A VA examiner should clarify the nature and etiology of any current Barrett's esophagus and whether there is a relationship between any such asbestos exposure and the Veteran's claimed Barrett's esophagus.  As discussed above, the RO should also take the necessary steps to determine whether military records demonstrate evidence of asbestos exposure during service as well as determine whether there is a relationship between any such asbestos exposure and the Veteran's claimed Barrett's esophagus.

Accordingly, the case is REMANDED for the following action:

1. First, the RO should conduct all development and take all actions necessary in accordance with the M21-1 to confirm whether the Veteran was exposed to asbestos during service.

2. Next, the RO should Schedule the Veteran for a VA examination with a VA examiner to determine the nature and etiology of all claimed disabilities, to include asbestosis or Barrett's esophagus.  The examiner should review all pertinent evidence of record, conduct any tests deemed appropriate, and provide an opinion regarding: 

a) whether the Veteran has a current diagnosis of asbestosis, and,

b) if the Veteran does have a current diagnosis of asbestosis, whether the it is at least as likely as not (50% degree of probability or higher) that the Veteran's asbestosis is related to service, to include exposure to asbestos in service, and,

c) whether the Veteran has a current diagnosis of Barrett's esophagus, and,

d) if the Veteran does have a current diagnosis of Barrett's esophagus, whether it is at least as likely as not (50% degree of probability or higher) that the Veteran's Barrett's esophagus is related to service, to include exposure to asbestos in service.

3.  Next, the RO should readjudicate the Veteran's claim for service connection for asbestosis and Barrett's esophagus.  If the claim is not granted, the RO should issue a Statement of the Case and return the case to the Board for review.


The Veteran 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. §§ 5109B, 7112 (2012).



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs