Citation Nr: 18142986 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-04 177A DATE: October 17, 2018 ORDER An initial disability rating for bilateral hearing loss in excess of 10 percent from May 23, 2011 is denied. REMANDED Service connection for asthma and chronic obstructive pulmonary disease (COPD) (respiratory disorder), to include as due to herbicide exposure, is remanded. Service connection for headaches, to include as due to herbicide exposure, is remanded. Service connection for a carpal tunnel syndrome of the left upper extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. Service connection for carpal tunnel syndrome of the right upper extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. Service connection for sciatica of the left lower extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. Service connection for sciatica of the right lower extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. FINDING OF FACT For the initial rating period from May 23, 2011, the bilateral hearing loss disability has been manifested by Level VI hearing in the right ear and Level II hearing in the left ear. CONCLUSION OF LAW For the initial rating period from May 23, 2011, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from April 1970 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and July 2012 rating decisions from the Regional Office (RO), which, granted service connection for bilateral hearing loss and assigned a 10 percent disability rating from May 23, 2011, and denied service connection for asthma and COPD, bilateral upper extremity carpal tunnel syndrome, bilateral lower extremity sciatica, and headaches. In May 2018, the Veteran testified at a Board videoconference hearing from the RO in Roanoke, Virginia, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. Since issuance of the statement of the case (SOC) in December 2014 and the Supplemental Statement of the Case (SSOC) in August 2017, additional evidence has been received by the Board. The Veteran’s substantive appeal via VA Form 9 was received after February 2, 2013 (received by VA in February 2015); therefore, this evidence is subject to initial review by the Board because the Veteran has not explicitly requested consideration by the Agency of Original Jurisdiction (AOJ). 38 U.S.C. § 7105(e). As such, the Board may consider this evidence in the first instance. With regard to the appeal for a higher initial rating for bilateral hearing loss, the Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. The duties to notify and assist regarding the remaining issues on appeal with be addressed in the REMAND section of this decision. 1. Initial Rating for Bilateral Hearing Loss The bilateral hearing loss disability is rated 10 percent for the initial rating period from May 23, 2011 pursuant to 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. The Veteran contends that bilateral hearing loss has worsened over the last six years, as he has had difficulty understanding words in a noisy setting, and has been prescribed three pairs of hearing aids during this time. The Veteran generally contends that the current hearing loss is more severe that is contemplated by the 10 percent disability rating. See May 2018 Board hearing transcript, February 2015 VA Form 9. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for bilateral hearing loss. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran’s claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board does not find staged ratings to be appropriate in this appeal. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings 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 as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 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 evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). After a review of all the evidence, both lay and medical, the Board finds that, for the rating period from May 23, 2011, forward, the evidence of record demonstrates that the bilateral hearing loss has been manifested by level VI hearing in the right ear and level II hearing in in the left ear, which more nearly approximates a 10 percent rating for this period. The bilateral hearing loss has not more nearly approximated a higher level of hearing loss for VA purposes. The record reflects that the Veteran was prescribed hearing aids in May 2011. On September 16, 2011, the Veteran underwent a VA audiological examination where pure tone thresholds were noted as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 65 70 75 LEFT 10 55 75 65 Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 66 percent in the right ear and 86 percent in the left ear. The average decibel loss for the right ear was 55. From Table VI of 38 C.F.R. § 4.85, Roman Numeral VI is determined for the right ear. The average decibel loss for the left ear was 51. From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is determined for the left ear. A 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II, the better ear, with column VI, the poorer ear. During an August 2015 VA outpatient follow up examination, the Veteran was able to follow and respond appropriately to questions in a quiet room without amplification, but was noted to be a good candidate for new hearing aids. The Veteran underwent an audiological examination during the August 2015 VA outpatient visit where pure tone thresholds were noted as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 30 65 70 95 LEFT 10 60 70 70 Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 68 percent in the right ear and 80 percent in the left ear. The average decibel loss for the right ear was 65. From Table VI of 38 C.F.R. § 4.85, Roman Numeral V is determined for the right ear. The average decibel loss for the left ear was 53. From Table VI of 38 C.F.R. § 4.85, Roman Numeral IV is determined for the left ear. A 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row IV, the better ear, with column V, the poorer ear. During the February 2018 follow up VA outpatient audiological examination pure tone thresholds were noted as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 45 80 85 105 LEFT 15 60 75 75 Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 76 percent in the right ear and 84 percent in the left ear. The average decibel loss for the right ear was 79. From Table VI of 38 C.F.R. § 4.85, Roman Numeral V is determined for the right ear. The average decibel loss for the left ear was 56. From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is determined for the left ear. A 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II, the better ear, with column V, the poorer ear. As the audiometric testing during the relevant rating period reflects an average decibel loss of 78 in the right ear and 56 in the left ear, and speech recognition scores of 76 percent in the right ear and 84 percent in the left ear, the evidence supports findings of no more than level V hearing in the right ear and level II hearing in the left ear. Such findings demonstrate that a disability rating in excess of 10 percent is not warranted for the period on appeal from May 23, 2011. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. For these reasons, the preponderance of the evidence weighs against a finding that the bilateral hearing loss disability more closely approximated a higher disability rating than 10 percent at any point during the initial rating period from May 16, 2011. See 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86. 2. Extraschedular Referral Consideration The Board has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the issue on appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). REASONS FOR REMAND Service connection for asthma and chronic obstructive pulmonary disease (COPD) (respiratory disorder), to include as due to herbicide exposure, is remanded. Service connection for headaches, to include as due to herbicide exposure, is remanded. Service connection for a carpal tunnel syndrome of the left upper extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. Service connection for carpal tunnel syndrome of the right upper extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. Service connection for sciatica of the left lower extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. Service connection for sciatica of the right lower extremity (claimed as peripheral neuropathy), to include as due to herbicide exposure, is remanded. The Veteran generally contends that service connection is warranted for a respiratory disorder (claimed as shortness of breath, wheezing, and coughing), peripheral neuropathy of the bilateral upper and lower extremities, and headaches, asserting that these conditions began in June 1971 due to chemical exposure during service in Vietnam. The Veteran reports that he served in Vietnam from October 1970 to November 1971 and his job duties included cleaning 75 to 80 M-60s and M-16s daily in an eight by eight foot shed without ventilation using gun bore cleaner and benzene solutions. The Veteran asserts that on June 21, 1971 he developed a severe headache, chest pain, difficulty breathing, and arm pain, for which treatment was rendered, and he was taken off full-time duty for three weeks. The Veteran contends that he continued to have problems with breathing, shortness of breath, headaches, and numbness, tingling, and pain in the arms and legs from the June 1971 in-service event until present. The Veteran asserts that he filed a claim for VA compensation benefits at service separation in November 1971, and the military physician arranged for him to undergo a follow up treatment in January 1972 at the Salem VA Medical Center (VAMC). In the alternative, the Veteran contends that respiratory problems, headaches, and peripheral neuropathy in the upper and lower extremities are due to herbicide exposure during service in Vietnam. See May 2018 Board hearing transcript. A review of the record reflects that the Veteran’s military occupational specialty was an Aircraft Armour Repairman during service. The commanding officer wrote that the Veteran was responsible for maintaining and cleaning all the guns for three aircrafts and guard duty personnel each night in an eight by 12 foot shed during service in Vietnam. See DD Form 214, August 2012 Lay Statement. A review of the service treatment records reflects treatment for shoulder pain and chest pain with no allergy or hay fever on June 21, 1971. Diagnosis appears to be viral myositis. See June 1971 service treatment record. To the extent that the December 2014 VA examiner opined that the current respiratory disorder is less than likely related to gun cleaning fluid exposure during service, the Board finds this aspect of the opinion to be inadequate. The VA examiner reasoned that the evidence suggests that asthma was symptomatic and preexisted service, as the service induction examination shows that the Veteran marked “yes” regarding a history of “coughing up blood”; however, while a review of the June 1969 service entrance examination reflects that a history of coughing up blood is marked “yes,” the military physician only noted a past history of sore throat and whooping cough as a child, with no notation of a history of asthma. Moreover, the Veteran specifically denied any history of asthma, shortness of breath, or chest pain/pressure at service entrance. As such, the VA examiner’s indication that asthma was symptomatic and preexisted service is based on inaccurate facts, as asthma was specifically denied and was not noted by the military physician during the June 1969 service entrance examination, so the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). Additionally, the December 2014 VA medical opinion provided conflicting rationale by asserting that chemical exposure does not cause asthma, but also reasoning that continuous exposure to chemicals over a prolonged period would cause ongoing asthma. See December 2014. In this case the record suggests that the Veteran’s military occupation did require continuous exposure to gun cleaning chemicals over the course of a prolonged period. Additionally, an November 1971 service treatment record reflects that a claim for VA compensation benefits was filed at service separation, which suggest that the symptoms of respiratory problems remained present at service separation. The December 2014 VA medical opinion also does not address June 1971 treatment for chest pain and left arm pain with diagnosis of viral myositis and its relation, if any, to any current respiratory disorder. As such an addendum opinion is warranted to assess whether the current respiratory disorder, which was not noted at service entrance, is etiologically related to chemical exposure to gun cleaning fluids during service, to include the June 1971 treatment for symptoms of chest pain and left shoulder pain and diagnosis of viral myositis during service. As previously noted, the Veteran also asserts that headaches and neuropathy in the upper and lower extremities are related to the claimed June 1971 in-service event of breathing problems, severe headache, and arm pain following exposure to gun cleaning chemicals. August 2012 lay statements from a fellow soldier reflects that the Veteran fell ill with headaches, severe pain, and breathing problems following exposure to a toxic chemical in June 1971 while in Vietnam. See August 2012 Lay statements. A review of the record reflects that no nexus opinion has been rendered regarding whether headaches and peripheral neuropathy of the bilateral upper and lower extremities is related to the claimed June 1971 in-service event, to include the June 1971 treatment for chest and left arm pain with diagnosis of viral myositis. The RO should obtain an addendum medical opinion regarding the etiology of headaches and peripheral neuropathy of the bilateral upper and lower extremities on remand. At the May 2018 Board hearing, the Veteran testified that he sought follow up treatment for respiratory problems, headaches, and neuropathy at the Salem VAMC in January 1972. A review of the record reflects that the RO attempted to obtain treatment records from the Salem VAMC for the period from November 1971 to December 1972, but no records were found. See August 2011 VA 10-7131. However, the Veteran testified that he has documentation of the January 1972 Salem VAMC visit. On remand, the RO should offer the Veteran the opportunity to submit the January 1972 Salem VAMC treatment note. In addition, the Veteran has testified that Dr. John Bonk opined that peripheral neuropathy is related to herbicide exposure on a treatment noted dated December 19, 2012; however, a review of the record does not reflect that this nexus opinion has been obtained. As such, the Veteran should also be afforded the opportunity to submit the nexus opinion from Dr. Bonk on remand. Service connection for a respiratory disorder, headaches, carpal tunnel syndrome of the right and left upper extremity, and sciatica of the right and left lower extremities, and are REMANDED for the following action: 1. Contact the Veteran and request information as to any other outstanding private treatment (medical) records from Dr. John Bonk concerning treatment of peripheral neuropathy of the bilateral upper and lower extremities, to include the clinical record dated December 19, 2012 relating peripheral neuropathy to herbicide exposure. Advise the Veteran that any medical opinion relating peripheral neuropathy to service, to include herbicide exposure, must be reduced to writing for consideration in the appeal. 2. Contact the Veteran to request documentation of the January 1972 Salem VAMC clinical record related to treatment of a respiratory disorder, peripheral neuropathy of the upper and lower extremities, and headache. 3. The AOJ should refer the claims file to an appropriate examiner, preferably the examiner who conducted the December 2014 VA examination, for an opinion concerning the etiology of the respiratory disorder, headaches, and peripheral neuropathy of the upper and lower extremities. The examiner is asked to offer the following opinions: a) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed respiratory disorder, to include asthma and COPD, is related to active service, to include the claimed June 1971 in-service event of breathing problems, severe headache, and arm pain following chemical exposure to gun cleaning fluids. b) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed carpal tunnel syndrome of the upper extremities (claimed as peripheral neuropathy) is related to active service, to include the claimed June 1971 in-service event of breathing problems, severe headache, and arm following chemical exposure to gun cleaning fluids. c) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed sciatica of the lower extremities (claimed as peripheral neuropathy) is related to active service, to include the claimed June 1971 in-service event of breathing problems, severe headache, and arm pain following chemical exposure to gun cleaning fluids. d) Is it at least as likely as not (50 percent or higher degree of probability) that the currently headaches are related to active service, to include the claimed June 1971 in-service event of breathing problems, severe headache, and arm pain following chemical exposure to gun cleaning fluids. Please note that he Veteran is presumed sound at service entrance with no preexisting asthma or neurologic disorder. In rendering the requested opinion, the VA examiner should address the relevance, if any, of the Veteran’s repeated exposure to chemicals such as benzene cleaning solutions used to clean guns daily during service.   The VA examiner should also address the relevance, if any, of June 1971 in-service treatment for chest pain and left arm pain with diagnosis of viral myositis as it relates to the current respiratory disorder, headaches, carpal tunnel syndrome of the bilateral upper extremities, and sciatica of the bilateral lower extremities (claimed as peripheral neuropathy). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel