Citation Nr: 1805940 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 10-11 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. 2. Entitlement to service connection for post-radiation syndrome, to include conditions such as prostate cancer. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Robert Surface, Attorney-at-Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran had active military service from April 1950 to September 1953 and July 1954 to September 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2009 and February 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina and Jackson, Mississippi, respectively. Jurisdiction of the case is with the RO in Columbia. The April 2009 rating decision granted service connection for hearing loss assigning a noncompensable rating. The In October 2017, the Veteran and his spouse testified regarding this matter at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. 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). The Veteran has raised the issue of unemployability during the pendency of the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim has been added to the appeal as part and parcel of the increased rating claim on appeal. The issues for (1) entitlement to service connection for post-radiation syndrome, to include conditions such as prostate cancer; and (2) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the rating period on appeal, audiometric testing has revealed, at worst, average puretone threshold of 43 decibels and 72 percent speech recognition in the right ear, and average puretone threshold of 43 decibels and 76 percent speech recognition in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran most recently underwent a VA audiology examination for compensation purposes in February 2017. During the October 2017 Board hearing, the Veteran testified that he had difficulty distinguishing words during conversation. The Veteran also indicated that he believed his service-connected tinnitus disability made his hearing difficulties worse. See Board Hearing Transcript at pg. 6. Moreover, the Veteran indicated that he could not tell whether his hearing loss disability had worsened since his most recent February 2017 VA examination. The Board has reviewed the February 2017 examination and finds that the examiner adequately considered the Veteran's symptoms, including his tinnitus and difficulty hearing speech. As such, the Board finds that an additional examination is not warranted. Moreover, additional VA treatment records were associated with the claims after the March 2017 supplemental statement of the case. Although these records show that the Veteran was seen for hearing aid checks, the records do not contain any audiological testing results or other evidence discussing the severity of the Veteran's hearing loss disability. As will be discussed above, hearing loss disability is evaluated for VA purposes by mechanically applying the rating schedule to the audiometric results. As such, the Board finds that these VA treatment records are not relevant to the hearing loss claim adjudicated herein; therefore, remand for initial AOJ consideration is not warranted. Neither the Veteran nor his attorney 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). Rating Laws and Analysis for Bilateral Hearing Loss Disability The Veteran contends that his hearing loss is more severe than the 10 percent rating assigned. When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.85. 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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. 38 C.F.R. § 4.86 (a). Each ear is evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86 (b). That numeral is then elevated to the next higher Roman numeral. Id. Each ear is evaluated separately. Id. The Board has reviewed all the evidence of record, including the lay statements and VA audiological examinations. For the reasons discussed below, the Board finds that the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met for the entire increased rating period on appeal. On a VA authorized audiological evaluation in March 2009, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 35 45 70 LEFT 25 35 50 60 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear. The March 2009 VA audiology consultation report findings, applied to Table VI, yield a numeric designation of III in the right ear on the basis of 43 decibel puretone threshold average and 80 percent speech discrimination, and a numeric designation of III in the left ear on the basis of 43 decibel puretone threshold average, and 76 percent speech discrimination). The numeric designation for the right ear III along with the numeric designation for the left ear III, entered into Table VII, produce a 0 percent evaluation for hearing impairment. On the authorized audiological evaluation in July 2010, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 45 50 70 LEFT 25 30 50 65 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 80 percent in the left ear. The July 2010 VA audiology consultation report findings, applied to Table VI, yield a numeric designation of IV in the right ear on the basis of 48 decibel puretone threshold average and 72 percent speech discrimination, and a numeric designation of III in the left ear on the basis of 43 decibel puretone threshold average, and 80 percent speech discrimination). The numeric designation for the right ear IV along with the numeric designation for the left ear III, entered into Table VII, produce a 10 percent evaluation for hearing impairment. On the authorized audiological evaluation in July 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 50 70 LEFT 25 30 50 65 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear. A July 2011 VA audiology consultation report findings, applied to Table VI, yield a numeric designation of IV in the right ear on the basis of 46 decibel puretone threshold average and 72 percent speech discrimination, and a numeric designation of III in the left ear on the basis of 43 decibel puretone threshold average, and 76 percent speech discrimination. The numeric designation for the right ear IV along with the numeric designation for the left ear III, entered into Table VII, produce a 10 percent evaluation for hearing impairment. On the authorized audiological evaluation in February 2017, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 30 60 70 LEFT 20 35 50 65 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 percent in the left ear. The February 2017 VA audiology consultation report findings, applied to Table VI, yield a numeric designation of II in the right ear on the basis of 46 decibel puretone threshold average and 88 percent speech discrimination, and a numeric designation of III in the left ear on the basis of 43 decibel puretone threshold average, and 90 percent speech discrimination). The numeric designation for the right ear II along with the numeric designation for the left ear II, entered into Table VII, produce a 0 percent evaluation for hearing impairment. The Board notes that puretone thresholds reported on the audiological evaluations discussed above were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) and were not recorded at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Thus, the provision of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment do not apply in this case. Further, the Board considered the lay statements submitted by the Veteran and recognizes his complaints regarding his inability to hear well. The Veteran is competent to describe his hearing difficulty. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the VA examiners addressed functional effects of hearing loss by noting that the Veteran had difficulty with understanding speech in conversations and that his tinnitus interfered with his ability to hear well. This sufficiently complies with Martinak. For these reasons, the Board finds that, for the entire rating period on appeal, an initial rating in excess of 10 percent for bilateral hearing loss is not warranted. Finally, the Board notes that neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). ORDER An initial rating in excess of 10 percent for bilateral hearing loss is denied. (CONTINUED ON NEXT PAGE) REMAND Additional VA treatment records were associated with the claims after the March 2017 supplemental statement of the case. As these documents were submitted by VA, and because a waiver of AOJ consideration has not been provided by the Veteran, a remand is warranted in order to allow the AOJ to review this evidence and issue a Supplemental Statement of the Case. See generally Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). Radiation Diseases, including Prostate Cancer The Veteran maintains that he has post-radiation syndrome, to include prostate cancer as a result of exposure to ionizing radiation in service. VA and private treatment records show that the Veteran has been diagnosed with adenocarcinoma of the prostate. See September 2017 private treatment record from Dr. Fried. The AOJ has already verified that the Veteran participated in an atmospheric nuclear test during Operation Greenhouse while in service. A June 2008 report from the Defense Threat Reduction Agency (DTRA) indicated that the reported doses were based on "worst-case parameter and assumptions" in order to afford the maximum benefit of the doubt to the Veteran. Specifically, doses which the Veteran could have received during participation in the U.S. atmospheric nuclear test were noted to be no more than 18 rem (external gamma dose); 0.5 rem (external neutron dose); and 550 rem (total skin dose to any skin area). In sum, the DRTA confirmed that the Veteran participated in a radiation-risk activity during service. Therefore, the Veteran meets the definition of a radiation-exposed veteran. 38 C.F.R. § 3.309 (d)(3) (2017). However, prostate cancer is not among the diseases considered specific to radiation-exposed veterans under 38 C.F.R. § 3.309 (d)(2) such that presumptive service connection would be warranted. Although the requirements for presumptive service connection are not met, prostate cancer is as a radiogenic disease under 38 C.F.R. § 3.311 (b)(2). Given the Veteran's exposure during service and his diagnosis of prostate cancer more than five years after exposure, all action required under 38 C.F.R. § 3.311 must be undertaken. In this case, although dose estimates have been obtained, the claim has not been referred to the Under Secretary for Benefits for an advisory opinion in accordance with 38 C.F.R. § 3.311(c) prior to adjudication of the claim. The Board notes that the evidence includes an October 2017 statement from D. Fried, M.D., PhD, the Veteran's treating oncologist who is associated with Gibbs Cancer Center & Research Institute. Dr. Fried stated that according to records provided by the military, the Veteran received at most 40 rem to the prostate. Dr. Fried stated that from looking at the data it is not possible to say for certain that the Veteran developed prostate cancer as a result of his exposure or not; however it is possible to say that his mean chance of getting prostate cancer increased significantly as a result of his exposure. The Board finds the opinion inadequate to decide the claim. First, it is unclear whether the opinion is based on an accurate factual predicate. It is unclear what military record Dr. Fried is referring to when he stated that the Veteran has received, at most, 40 rem to the prostate. Second, it is unclear if Dr. Fried's opinion is discussing a potential relationship between the Veteran's prostate cancer and his exposure to radiation during Operation Greenhouse. Third, Dr. Fried's opinion is rendered in terms of mere possibility, and not in terms of VA's standard of review (a 50 percent probability or greater). TDIU As the issue of entitlement to TDIU could be affected by the decision on the service connection claim being remanded, these matters are inextricably intertwined and the TDIU claim must be remanded as well. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should refer the Veteran's case to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c), who may request an advisory medical opinion from the VA Under Secretary of Health under 38 C.F.R. § 3.311 (b), (c)(1). A formal written determination should be added to the record explaining the steps taken and indicating the development required to address the contention of in-service radiation exposure causing radiogenic disease has been completed. 2. Conduct any additional development regarding the derivative TDIU claim. 3. Then readjudicate the service connection claim as well as the derivative TDIU claim on appeal. If the claims remain denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs