Citation Nr: 18141016 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-04 811 DATE: October 9, 2018 ORDER Entitlement to service connection for chloracne, to include as a result of exposure to herbicide agents is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to a heart condition is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to a heart condition is remanded. Entitlement to an increased rating in excess of 10 percent for residual shell fragment wound (SFW) left arm, with retained foreign body (RFB) and involvement of muscle group (MG) VI, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of chloracne. 2. The Veteran’s bilateral hearing loss disability is manifested by no more than Level I impairment in the right ear and Level II impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for chloracne, to include as a result of exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from June 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. The Veteran submitted a notice of disagreement (NOD) in October 2013. A statement of the case (SOC) was issued in January 2016. He perfected a timely substantive appeal via VA Form 9 in February 2016. Jurisdiction is now with the RO in Chicago, Illinois. The Board notes that since the issuance of the January 2016 SOC, additional VA treatment records were associated with the Veteran’s claims file. However, these records are either cumulative or not relevant to the claims decided herein. Accordingly, appellate consideration of these issues may proceed without prejudice to the Veteran. See 38 C.F.R. § 19.31 (2017). Finally, the Board notes that the Veteran’s October 2013 NOD disputed the denial of service connection for a heart condition, hypertension, erectile dysfunction, chloracne, and a psychiatric condition, as well as the evaluations of his service-connected left arm disability and bilateral hearing loss. Subsequently, a January 2016 rating decision granted entitlement to service connection for coronary artery disease and generalized anxiety; thus, these issues are no longer in appellate status. Furthermore, the October 2013 NOD did not include the issue of special monthly compensation; therefore, that issue is not on appeal. See 38 C.F.R. § 20.201. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. Governing law establishes that a “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 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...” 38 U.S.C. § 1116(f). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders, including chloracne. 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for chloracne. The Veteran contends that service connection is warranted for chloracne. Specifically, he asserts that the condition is the result of exposure to herbicide agents while serving in Vietnam. The question at hand is whether the Veteran has a current disability that may serve as the basis for a grant of service connection. After thorough review of the claims file, the Board concludes that the Veteran does not have a current diagnosis of chloracne and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In September 2011, the Veteran submitted a statement seeking consideration for service connection for “possible chloracne.” In his October 2013 NOD, he wrote that he felt strongly that the condition should be service connected. In his February 2016 VA Form 9, he requested service connection for the condition. Beyond these statements, there is no mention of chloracne in the lay or medical evidence of record. Lay evidence can be sufficient to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran is not competent to render a diagnosis that he now has, or has ever had, chloracne because this requires the type of medical training, education, and expertise which he has not been shown to possess. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The diagnosis of chloracne requires the administration and interpretation of diagnostic tests, and thus requires medical expertise to identify. While the Veteran may believe that he has chloracne, he is not competent to provide a diagnosis in this case. Indeed, his claim suggested only the possibility of chloracne and the record contains no further evidence to support anything beyond that possibility. The Veteran has not presented any evidence showing that he has symptoms of chloracne that result in any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). Consequently, the Board gives more probative weight to the competent medical evidence of record, which does not reflect a diagnosis of chloracne. Service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This applies under both direct and presumptive theories of entitlement. In this case, the evidence does not persuasively demonstrate that the Veteran has chloracne. Absent a showing of a current disability, service connection cannot be granted. Id.; see Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for chloracne, and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. 2. Entitlement to a compensable rating for bilateral hearing loss. In evaluating hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Turning to the evidence of record, the Veteran underwent VA audiological evaluation in July 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 80 100 LEFT 15 20 50 80 90 The average decibel loss was 54 in the right ear and 60 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. The findings from the July 2013 examination reflect a slight decrease in acuity from the previous VA audiological examination in September 2004. The results reflect Level I hearing acuity in the right ear and Level II hearing acuity in the left ear under Table VI. Under Table VII, utilizing these designations, a compensable rating is not warranted. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The evidence of record also includes multiple statements from the Veteran declaring his belief that a higher rating is warranted. On his October 2013 NOD, he stated that he had to use hearing aids, thus a higher rating was warranted. On his February 2016 VA Form 9, the Veteran indicated that hearing aids were provided to him by VA providers approximately ten to fifteen years prior. The Board acknowledges the contentions put forth by the Veteran regarding his hearing difficulties and the impact his service-connected hearing loss has on his ability to understand speech. As a layperson, he is competent to report symptoms related to his hearing. However, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. Thus, the findings of the audiological examinations are more probative than the lay contentions as to the extent of hearing loss. As noted previously, because disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet. App. at 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Thus, when applying the audiological examination test results described above, the Board is compelled to find against an entitlement to a compensable disability rating under the Rating Schedule. In finding such, the Board reiterates that the Veteran is competent to report the symptoms related to his loss of hearing. He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, the competent and credible lay evidence is outweighed by the competent and credible medical evidence that evaluates the true extent of his disability based on objective data coupled with the lay complaints. The Board also notes that a noncompensable rating does not mean that the Veteran’s hearing is normal. The initial grant of service connection acknowledged that he has hearing loss, while the assigned rating reflects that the degree of disability of his hearing loss does not meet VA’s criteria for a compensable rating. The Veteran has not raised any other issues with respect to the increased rating claims, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). REASONS FOR REMAND 1. Entitlement to service connection for hypertension and erectile dysfunction, to include as secondary to a heart condition is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for hypertension and erectile dysfunction, because the record does not contain a medical opinion addressing whether the Veteran’s service-connected coronary artery disease aggravated the claimed hypertension or erectile dysfunction. Accordingly, remand is warranted to obtain an addendum VA opinion regarding aggravation. Also, although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), the National Academy of Sciences Institute of Medicine (NAS) has concluded that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). Thus, the Board finds the Veteran should be afforded a VA medical opinion to determine whether the Veteran’s hypertension is related to his herbicide exposure. 2. Entitlement to an increased rating in excess of 10 percent for residual SFW left arm with RFB and involvement MG VI is remanded. In September 2011, the Veteran submitted a request for an increased evaluation for his left arm condition. Upon VA examination in July 2013, he described intermittent sharp pain about once a month, radiating down his arm from the scar. He denied any functional limitation or loss of motion of strength. Subsequently, in his February 2016 VA Form 9, the Veteran described worsening symptoms of pain, limited motion, fatigue, weakness, and sharp pain at the entrance area by the scar. As he has asserted that his disability has increased in severity since the prior examination, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the service-connected residual SFW left arm with RFB and involvement of MG VI. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension and erectile dysfunction are at least as likely as not aggravated beyond their natural progression by service-connected coronary artery disease. Also, in light of the NAS’s conclusion that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension, is it at least as likely as not that the Veteran’s hypertension is related to his herbicide agent exposure given his medical history, family history, other risk factors, etc.? 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residual SFW left arm with RFB and involvement MG VI. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] To the extent possible, the examiner should identify any symptoms and functional impairments due to service-connected residual SFW left arm with RFB and involvement MG VI alone and discuss the effect of the condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.